Contents GazetteLawSociety

Regulars Cover story Lords and masters News 2 10 One aspect of Irish court procedure that non-lawyers find surprising is the mode of address used towards judges in the superior courts. Letters 8 Brian Conroy tugs his forelock and makes the case for reform Tech trends 28 Book reviews 31 There’s something about Mary When someone as volatile as Michael McDowell Briefing 33 16 describes you as ‘fiery’, you’ve got to be doing Practice notes 33 something right. Straight-talking deputy Legislation director general Mary Keane tells Conal update 35 O’Boyle about her career and the challenges facing the profession FirstLaw update 37 Eurlegal 41

People and Contract law: an places 46 20 opportunity for reform Irish contract law is a mess, and EU Professional intervention in the area is not much better. information 49 Now the EU has decided to embark on a process Recruitment of reform, and the scope and ambition of what it contemplates is advertising 55 breathtaking. Paul Keane reports

COVER PIC: www.edeandravenscroft.co.uk Scotch on the rocks 24 Like its counterparts in this country, the Scottish legal profession is coming under scrutiny from consumer and competition bodies. Paul Rogerson brings us up to speed on what’s been going on

Editor: Conal O’Boyle MA. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, lost land title deeds, employment, miscellaneous), see page 49. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 837 5018, fax: 884 4626, mobile: 086 811 7116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial board: Keith Walsh (chairman), Conal O’Boyle (secretary), William Aylmer, Tom Courtney, Stuart Gilhooly, Eamonn Hall, Pat Igoe, Philip Joyce, Mary Keane, Ken Murphy, Michael V O’Mahony, Alma Sheehan

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter.

Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Volume 99, number 6 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: €57.15

1 Law Society Gazette July 2005 News NATIONWIDE News from around the country DUBLIN The numbers get higher and higher There are now almost 3,000 solicitors in the Dublin Solicitors’ Bar Association, which is a record number, according to its president Orla Coyne. The DSBA says that its membership is currently 2,800 and believes that this recognition that the association is well regarded and plays a useful role for solicitors. In an unprecedented move, the Legal Aid Board has arranged for all of Leave a Tip its solicitors to be members of Director general Ken Murphy and president Owen Binchy pictured at the recent AGM of the Tipperary the DSBA. Solicitors’ Bar Association in Thurles

Residential Tenancies Act action, because of the appalling progress on facilities here in such CPD on-line The Residential Tenancies Act conditions that we had to work matters as seating arrangements, The DSBA continues with its could have the unintended in at Mohill’, noted Gabriel basic comforts in court and court plans for on-line continuing consequence of applying to long Toolan, secretary of the Leitrim security’, she said. It was professional development leases of the type used in Bar Association. The court had important that the Courts courses for members, at a venue apartments, according to the to function in an old bingo hall Service, which is now charged and time to suit the individual DSBA. This was confirmed by in Mohill. The library had now with the administration of court solicitor. The initiative is a senior counsel, and the drafting moved from the court building buildings, was aware of problems reaction to what president Orla error in the legislation has been in Ballinamore and they were at practitioner level around the Coyne has been hearing from brought to the attention of the talking to the Courts Service country. her meetings with firms and the parliamentary draughtsman’s about now improving the huge pressures on time that office. The Private Residential facilities in Ballinamore Hello there many solicitors working in Tenancies Board has given Courthouse. Local solicitors’ associations are offices have in trying to fulfil assurances that it would never be ‘Judge McBride has made a organising get-togethers for their CPD obligations. their intention that landlords good impression since coming to solicitors who, in earlier times, ‘The fact that users will be register apartment-type leases, Leitrim, and his pragmatic would have already known each able to pick and choose when, and solicitors can be assured that approach to issues before him is other socially. where and what they want to no consequences will flow from welcomed’, said Toolan. Judge ‘We had a “social day” on 18 participate in, and from the the non-registration. We are McBride replaced Judge David June for solicitors and their comfort and convenience of their advised that amending legislation Maughan, who has been assigned partners and children in New own office, is recognised by to close off what the government to Dublin. Ross, which was attended by many to be hugely attractive’, department regards as no more almost 100 people’, noted Helen says Coyne. It is planned to than a theoretical possibility will Doyle. The association felt that inaugurate this project in the WEXFORD be introduced as soon as it now had a role to play in autumn and full details will be Speak up possible. introducing solicitors to each announced shortly. The Courts Service is reaching other. ‘Because of the numbers out and trying to remedy the of solicitors and new Out and about LEITRIM shortcomings in facilities for practitioners and sheer time The DSBA recently met Enough is enough solicitors and other court users, pressure, we do not get to meet colleagues in the Tallaght area. In a dramatic statement about according to the president of each other as we should’, she ‘We were grateful for the facilities, District Court Judge the Wexford Solicitors’ added. The barbecue talk was attendance of the president of Sean McBride, newly-appointed Association Helen Doyle. The over sausages and wine, a the Law Society, Owen Binchy, to Co Leitrim, has refused to sit over-burdened Circuit Court winning combination in and the director general, Ken in Mohill Courthouse and has has now been given extra anyone’s book. G Murphy, who briefed colleagues transferred the lists to sittings, which are reducing the in relation to current issues Ballinamore Courthouse. congestion. affecting the profession’, ‘People would usually protest ‘We had a recent meeting in Nationwide is compiled by Pat according to association at having to travel. But there has Enniscorthy with Courts Service Igoe, principal of the Dublin law secretary Kevin O’Higgins. been widespread support for the representatives, and we made firm Patrick Igoe & Co.

2 Law Society Gazette July 2005 News Society slams equity release schemes he Law Society has hit out the executors to those wills. The society is so concerned Tat equity release schemes ‘Apart from the basic that it has refused to allow targeted at the elderly and has principle that an executor has certificates of title to be used singled out the Bank of Ireland no legal status until the in connection with the Life (BoI) for criticism. The society testator’s death, this loan product. Dorgan added is particularly annoyed at the requirement involves the that the society had been BoI’s Life loan equity release borrower in a waiver of lobbying the Bank of Ireland scheme. confidentiality that seems quite to change the scheme’s According to Pat Dorgan, unnecessary’, says Dorgan. He conditions for two years but chair of the society’s added that the bank’s with little success. Conveyancing Committee: requirement that named ‘We have fundamental concerns executors must agree to co- about all these products, but we operate with the bank after the have particular difficulties with testator’s death was Teaching the Bank of Ireland one’. The Equity release schemes targeted ‘draconian’. opportunities BoI scheme allows its at the elderly ‘The Conveyancing customers to borrow a lump Committee is aware of a in the Law sum based on the value of their than similar equity release number of cases where elderly property. The loan is paid after schemes in Britain. It has taken people’s twilight years were School the borrower dies or moves out particular exception to the blighted by arguments between he Law Society plans to of the house. requirement that borrowers members of their family who Trun two separate The Law Society believes make a will and appoint had become aware of the professional practice courses that the bank is imposing more executors. It is also worried provisions of a will’, said in 2005, writes TP Kennedy. rigorous conditions on lenders about the requirement to name Dorgan. The first of these will begin on 26 September and run between 9.30am and 4pm. The second will begin in Gazette editor plays the green card December and run until May aw Society Gazette editor relevant magazine that is on a 2006, with its teaching hours LConal O’Boyle is to leave the par with the very best legal running from 4.15pm until award-winning magazine that he magazines to be found 10pm. Due to the introduction relaunched in 1997 to take up a anywhere, have been of this second course, we are new job as editor of the Kildare remarkable. Both the society anxious to add to the valued Nationalist newspaper. and the profession have pool of solicitors who are ‘It’s been a blast’, said benefited greatly from his nine currently contributing to our O’Boyle. ‘The people who years in the Gazette editor’s courses. produce the Gazette are among chair. We invite solicitors who the very best in the business. It’s ‘The eye-catching design and have been qualified for two been a privilege to work with energy of the magazine showed years or more to consider them, and the Gazette is the Conal’s understanding that it doing some teaching for the success it is largely because of does not matter how erudite or Law School. We also welcome their dedication and talent. If I valuable a legal article may be if applications from those with miss anything, it will be the fun no-one reads it. Getting the less than two years’ practice of working with Nuala, Garrett, O’Boyle: buy the Kildare Nationalist balance right between experience but with specialist Catherine, Valerie and Seano. readability and relevance was qualifications or experience. You couldn’t beat them with a Place. I have no doubt that the always a challenge, but was Educational training (including big stick – and God knows I’ve new editor will lead the Gazette usually achieved with aplomb. It the use of IT and visual aids) tried. to even greater success. Oh was this that brought editors and payment for teaching will ‘The good people of Kildare yeah, and buy the Kildare from law societies in be provided. can look forward to hard-hitting Nationalist’. neighbouring jurisdictions to be If you are interested in investigations of outlandish ape Commenting on the move, taught and in turn to copy the getting involved, please write antics and a revisionary attitude Law Society director general Gazette’s winning formula. to either myself or Geoffrey to history, particularly where the Ken Murphy said: ‘Conal’s ‘Conal’s personality and Shannon (Education Centre, Duke of Wellington is achievements with the Gazette, talents will be missed in the Law Society of Ireland, concerned. in particular its transformation Law Society. We wish him and Blackhall Place, Dublin 7) with ‘I’m proud of what we from a journal that was his wife Kathleen – who had a brief outline of your practice achieved with the Gazette, and colourless in every sense of the her own valued career in the experience and any additional I’ll be sorry to leave my friends term into an award-winning, Law Society – every success and qualifications. and colleagues in Blackhall vibrant, highly-readable and happiness in the future’.

3 Law Society Gazette July 2005 News US judge bemoans ‘decline in civility’ S Federal Court judge get off through a legal loophole’, the truth’, she said. ‘I’m UPatricia Gaughan has whereas lawyers would see it as embarrassed to tell you that we highlighted a ‘general decline in safeguarding constitutional have a general decline in civility civility among lawyers’ in the rights. among lawyers. There’s a win- United States and has suggested ‘Or, unfortunately, it could be at-all cost attitude’. that some of the legal profession’s PR problems might be self-inflicted. Gaughan was a Malocco struck off guest of the Mayo Solicitors’ he president of the High to the Supreme Court, but he Bar Association and made her TCourt made an order on 28 failed to obtain an order comments at Castlebar June striking the name of Elio preventing the Law Society courthouse on 14 June, writes Malocco off the roll of solicitors. applying to have him struck off. Gaughan: can’t we all just This followed a finding of the Malocco had not held a Kathy Burke. get along? Gaughan cited a 1992 Disciplinary Tribunal in 2000, practising certificate since American Bar Association survey Gaughan said that the ABA after a 13-day hearing, that 1991, when the High Court that found that while 79% of research showed that US Malocco had been guilty of suspended it on the application people viewed police favourably, lawyers were regarded as misconduct. of the Law Society. He was the comparable figure for arrogant, greedy and uncaring, He then took a judicial review convicted in 1993 of six counts attorneys was 40%. Only with poor ethical standards, and challenge to the procedures of of dishonesty in relation to his stockbrokers and politicians that people found their TV the tribunal, which was practice as a solicitor and rated lower. She said that by advertising distasteful. But she dismissed by the High Court in received a five-year sentence. 2002, attorneys’ rating had observed that people go to 2002. Malocco subsequently He lost an appeal against fallen to 19%. However, 58% of lawyers at their worst moments issued proceedings in the High conviction in 1996 and respondents were satisfied with in life, and they are angry when Court, which he in turn appealed remained in custody until 1998. their own attorney, she added. they perceive that ‘murderers ONE TO WATCH: NEW LEGISLATION The in camera rule and section 40 publication of a decision by the to any person and subject to such at least seven days before the of the Civil Liability and Courts court in such proceedings, provided conditions as the minister may hearing. Similar rules for the Circuit Act, 2004 that information identifying a party prescribe by order. This is not a Court are expected. Section 40 was commenced on 31 or any child is withheld. A person blanket permission. The people to March 2004 by SI 544/04. It qualified to report (as above) may whom copies of orders may be Complaints against professionals remedies some of the problems attend proceedings, but the court given must first be prescribed by Sub-section 6 deals with the with the in camera rule as they may impose directions for attend- ministerial regulations, and none problems arising from the in affect family law proceedings. Sub- ance, and in special circumstances have been made to date. It is camera rule where it prevented any section 2 lists 11 sections in ten may give a reasoned direction to difficult to work out a list of review of the actions of enactments to which the section prevent access. No regulations categories of people who should be professional persons involved in applies and, although it is not have been made as yet to identify entitled to receive orders, and this family and child cases. In cases listed, the section also applies to persons entitled to report. may be a reason for the delay. under the listed enactments, the Child Abduction and Enforce- The report must be prepared in documents, information and ment of Custody Orders Act, 1991. accordance with rules of court. Support person evidence may now be disclosed to This is because that act is stated Rules have now been made under Sub-section 5 permits a party to be a body or person that is performing to be construed as one with the section 40 for the superior courts accompanied by another person, any statutory functions involving a Courts (Supplemental Provisions) (SI 247/05, effective from 2 June subject to the approval of the court hearing, inquiry, investigation or Act, 1961, section 45, which is 2005) and for the District Court (SI and any directions it may give. This adjudication. Further, the minister included. Other acts that might 256/05, effective from 3 June enables an emotionally fragile party may prescribe by order other bodies have been expected to be listed are 2005). The rules are described to bring a friend for support, and is or persons when they are involved the Guardianship of Infants Act, below. Thus, access to family cases a welcome development. Under in the same activities, and he did 1964 and the Adoption Acts. in the superior or district courts for new Rules of the superior courts so by SI 170/05 on 31 March reporting purposes has been and of the District Court (SI 2005. The prescribed bodies are: Court reports possible since early June. Access in 247/05 and SI 256/05), • The Barristers’ Professional In relation to the listed enactments, the Circuit Court must await rules procedures are laid down for the Conduct Tribunal of the Bar nothing is to prevent a barrister, of court. completion of a form by the Council solicitor or person specified by accompanying person and its • The benchers of the Honourable ministerial regulations preparing a Copies of orders to third parties lodging either on the day (if agreed Society of King’s Inns report of proceedings, or the Sub-section 4 allows a party to give with the other party) or previously • The Professional Conduct publication of such a report, or the copies of orders in the proceedings by motion on notice (if not agreed), Appeals Board of the Bar Council

4 Law Society Gazette July 2005 News Society forces Revenue Commissioners climb-down on first-time buyer relief

aw Society lobbying has called into question many Lresulted in a change of heart transactions already completed by the Revenue Commissioners on behalf of clients in relation to and a reversal of their policy loans advanced by the lending that threatened stamp duty relief institutions up to the time of the for people who were helped to Revenue publication in April. buy a house by their parents, Conveyancing Committee writes Catherine O’Flaherty. stalwart Patrick Dorgan threw This controversy started with himself into a round of the publication on the Revenue’s interviews, putting the Law website in April of a revised Society’s arguments across in ‘frequently-asked questions’ Revenue saw sense on stamp duty relief both the print and broadcast item that contained an monies or who is a party to any interpretation would have media. His work resulted in interpretation by the Revenue of borrowings is regarded as a prevented most parents from widespread coverage and led to who qualifies as a buyer of a buyer of the house and the relief continuing to join as co- statements from minister Noel property that was at odds with would be lost unless that person borrowers with their children. Ahern and further questions in the position as understood up to was also a first-time purchaser. The interpretation resulted in a the Dáil on the issue. This that point by solicitors, the The Revenue’s view was that huge number of queries to the culminated in the Revenue’s lending institutions and the the house was held for the Conveyancing Committee’s announcement that a parent public at large. The Revenue person providing the monies helpline. Apart from the loss of could join as co-mortgagor with said that any person who used in the purchase by way of a relief, practitioners were the first-time buyer without provides part of the purchase presumed resulting trust. This worried that it would also have losing the relief.

• The Professional Practices connected with a case to third The sub-section will also enable application, subject to any Committee of the Bar Council, parties, if such a disclosure is information concerning children to directions. and required to protect someone’s be released to schools, the Health A rule is also made to deal with • The Professional Practices legitimate interests. The wording of Service Executive and others on an application by a party for the Committee of the King’s Inns. the sub-section suggests that only the application of a party or the disclosure to a third party of the court actually hearing the case court’s own motion, for the documents, information or evidence This sub-section now enables the can give such an order and children’s protection or assistance. under s40(8). Application is to be Law Society to investigate therefore, by implication, if a case made by motion to the court on complaints against solicitors arising has concluded, no other court can Existing cases notice to the opposing party, from family law cases, details of give this order. Further, third Lastly, sub-section 10 provides that grounded on affidavit. which were previously inaccessible parties may not apply themselves. this section applies to proceedings Clearly, regulations still remain because of the wide way in which This may give rise to difficulties. brought and decisions made both to be made to fill out the scheme the in camera rule was interpreted. Nevertheless, this will give some before and after commencement of of the section. During the Dáil Other bodies may be included in protection to third parties, who may this section. debate, the minister accepted that future, for example, those have a valid requirement to see an achieving a balance between the regulating psychiatrists and order made in a family law case, as Rules of court different interests concerned was psychologists. for example arose in Tesco v The Superior court rules and the difficult, and he undertook to Any such hearing or inquiry must McGrath (unreported, High Court, District Court rules are similar. They review the section in two years. be conducted in private, and no 14 June 1999). In that case, Mr make provision for admission to Despite these reforms, the document, information or evidence McGrath was able to extricate proceedings to undertake the operation of the in camera rule in may be published. himself from a contract for the sale preparation of a report. Prior to or family and other areas of law can of land to Tesco because Morris J at the commencement of still be unsatisfactory and result in Disclosure to third parties determined that matrimonial proceedings, the person must injustice. Sub-section 8 applies to a court proceedings and any orders under identify him/herself to the court The Law Society’s Law Reform that is hearing proceedings under those proceedings could not be and apply for directions in Committee proposes to examine one of the listed enactments. It produced. Other cases giving rise accordance with the act. The court this subject next year. G gives the court discretion on its to difficulty in conveyancing must be satisfied that the person own motion or on application by a practice were MP v AP ([1996] 1 IR is qualified under the act and must Alma Clissmann is the Law party to order disclosure of 144) and RM v DM ([2000] 3 IR hear any submissions from the Society’s parliamentary and law documents, information or evidence 373). parties, and may allow the reform executive.

5 Law Society Gazette July 2005 News News HUMAN RIGHTS WATCH ECHR gives press bad news Michael Kealey reports on developments in relation to the practical application of the European convention on human rights

n 16 June, the European leading negotiations for the expression against good name. OCourt of Human Rights formation of what was to Independent Newspapers rejected a claim by Independent become the ‘Rainbow argued that the circumstances of Newspapers, owners of The Coalition’. All sides agreed the de Rossa could not realistically be Independent in the UK, that the defamation was serious. separated from those in Tolstoy limited guidance given to juries Nonetheless, the newspaper Miloslavsky and if the law in in defamation actions in Ireland argued that the award was England at that time was a infringed its right to freedom of excessive and disproportionate breach of article 10, then so expression guaranteed by article to any damage done to Mr de must the law in Ireland. 10 of the European convention on Rossa’s reputation. By a six-to-one majority human rights. In doing so, the Importantly, the Sunday (Judge Barreto dissenting), the court distinguished its 1995 Independent sought to challenge European court preferred the decision in Tolstoy Miloslavsky v the system whereby juries state’s arguments. The court the United Kingdom, when it determine the size of the award stressed that a ‘state remains decided that an award of without any detailed guidance free to choose the measures stg£1.5m infringed the ECHR by the trial judge. It alleged that which it considers best adopted De Rossa: false allegations as it was disproportionate to the this procedure in practice leads to address domestically the damage done and the jury to erratic and often excessive convention matter at issue’. As making it had not been given awards. In 1997, the Irish Newspapers said that juries the trial judge in de Rossa had, adequate guidance. Supreme Court had held in should also be told the level of among other things, given the The decision was the end of a Dawson v Irish Brokers Association awards in personal injury actions jury an example of a relatively long road, starting with a (unreported, Supreme Court, 27 so as to make appropriate minor defamation case (without comment piece in the Sunday February 1997) that comparisons with damage to naming it or letting the jury Independent almost 13 years ago. ‘unjustifiably large awards, as reputation. If such guidelines know the size of the award), his In July 1997, a jury awarded well as the costs attendant on and procedures were not in charge could be distinguished former minister Proinsias de long trials, deal a blow to the place, the Irish legal system did from that in Tolstoy Miloslavsky. Rossa damages of IR£300,000 freedom of expression not adequately protect the Finally, ‘the requirement of (about €381,000) for libel over entitlement that is enshrined in defendant’s right to freedom of proportionality distinguishes the an article in December 1992. the constitution’. expression. appellate review at issue in the Two years later, the Supreme The newspaper pointed out present case (by the Irish Court upheld the award. that, in 1993, the Supreme Margin of appreciation Supreme Court) and Tolstoy Independent Newspapers Court had upheld an award In its substantive defence, the Miloslavsky’. appealed to the European court made to a barrister, Donagh state relied on the latitude given and its case against Ireland was McDonagh, against The Sun to Ireland by the ‘margin of Impetus for change argued in October 2003. newspaper for a very grave appreciation’ and stressed the As long ago as 1991, the Law Ironically, for an institution that defamation. In McDonagh v significant difference in size Reform Commission said that has sat in judgment on News Group (unreported, between the award against Irish law failed in its two main allegations that domestic courts Supreme Court, 23 November Independent Newspapers and aims: to protect persons from have failed to decide cases 1993), the Supreme Court had that made in Tolstoy Miloslavsky. unjustified attacks on their good within a reasonable time, the determined, however, that the It said that there were name and to allow for the European court took almost two award of IR£90,000 was at ‘the distinguishing features between publication of matters of public years to deliver its decision. top of the permissible range’. the UK and Ireland in the interest. It proposed reform The newspaper argued that it guidelines given to the jury and including giving guidance to Serious defamation was illogical that a jury should in the roles of the appellate juries. Its stance was supported The jury had decided that the determine the award in the de courts. by the Mohan Committee. article falsely alleged that Mr de Rossa case without having the As the Supreme Court in de Despite this, defamation law Rossa was involved in or benefit of this information. Only Rossa had stressed that ‘the remains unreformed. The tolerated serious paramilitary if they knew the Supreme damages awarded by a jury must European court’s decision is crime, was anti-semitic and Court’s views on an appropriate be fair and reasonable … and unlikely to act as an impetus for supported violent communist award for a serious libel could must not be disproportionate to change. G oppression. The timing of the the jury properly determine the the injury suffered’, Irish law had article was significant. It compensation to which Mr de met its convention obligations to Michael Kealey is a solicitor with appeared as Mr de Rossa was Rossa was entitled. Independent balance the rights of free the Dublin law firm William Fry.

7 Law Society Gazette July 2005 Letters

Letters

CPD courses are good value for money From: Stuart Gilhooly, chairman, minimum post-qualification society at the end of the cycle Law Society Education Committee educational requirement. and sign the declaration that ith reference to the letter There is no question of the they have completed their Win last month’s Gazette, I Law Society forcing required hours. A random would like to respond to the practitioners to attend certain audit will take place in the first various queries that were raised types of courses. Indeed, the quarter of a new cycle, and in relation to the continuing task force recommended that only then will disciplinary professional development the society should not advise as measures come into play if scheme. to the appropriateness or practitioners cannot prove In September 1999, the cost (€25 per seminar) and otherwise of particular their attendance at seminars Council of the Law Society more of these will follow. In providers, but should rely on they have listed on their resolved that a CPD task force addition, the Law Society has solicitors’ good judgement as record cards. should be established to run a sizeable number of to what course is relevant as a Part-time solicitors and determine specifically whether seminars for which no fee was method of fulfilment of the those that are semi-retired are CPD should be recommended charged. Any profit enables the CPD requirement. This still deemed to fall within the for solicitors in Ireland. There society to run loss-leader therefore ensures that scheme, as they hold practising was widespread consultation seminars in areas and on topics solicitors complete their certificates. Also, the initial with the solicitors’ profession that a commercial provider requirement by attending CPD cycle, which commenced on this matter in order to could not do. courses of relevance for their on 1 July 2003, does not end ensure that the views of all While it is undoubtedly the own practice development. until 31 December 2005, interested parties were case that many solicitors ensure It is axiomatic that any thereby allowing 2.5 years to considered. In February 2000, that they keep abreast of prescribed regime of CPD complete the current each bar association was also developments and changes in must have some sanctions in requirement of 15 hours’ invited to make its views the law, the evidence was that respect of non-compliance if it group study and five hours’ known. Extensive research was few had done so in a systematic is to have any meaning. The private study. completed into the operation way. The habit of life-long CPD scheme does indeed I am disappointed that some of CPD in other jurisdictions learning is essential in the impose obligations on the solicitors are unhappy with the and in other professions. The current competitive market profession, but they would not regime, but it does appear that CPD requirement introduced place. be considered ‘draconian’. a majority of solicitors are in Ireland is minimal when The CPD task force also Indeed, as the scheme is one of embracing the new system and compared to most other legal considered the point in self-certification, solicitors the feedback we have received jurisdictions. relation to whether it would be need return their completed has generally been very The task force considered desirable to allow market CPD record card to the positive. the point about CPD being an forces to prevail, which might additional financial burden, and ‘sort out the wheat from the it stated that the current chaff’. The solicitors’ courses on offer represent good profession holds itself out as a Yay for the library! value for money and a cost that group whose unique From: Stephen Maher, Solicitor, minutes I got a response to say is easily recouped from the characteristics justify self- Dublin they were available and that I efficiencies and knowledge regulation. This brings with it had cause yesterday to need to would have them in this gained from attendance at a concomitant responsibility to Ilook up a case in the Irish jurist morning’s post by DX. Total these seminars. The society has prescribe educational standards and also to obtain an extract cost of copies including VAT: also borne in mind that, when on which the public can rely. from a book on the Registry of €12. providing these lectures, they The current CPD scheme Deeds. Having looked up the What a great service we have, should make a modest profit discharges this responsibility. website and the section dealing and we owe a great debt of only, and to that end, we have It demonstrates to the public with the library, I ascertained thanks to the hard-working staff reduced the prices on a variety that the profession values that the books were in the in the library who can provide of seminars in the current educational standards to the library. I sent an e-mail to the such an efficient service for us cycle. We have also provided extent that it is prepared to library requesting copies if they practitioners. seminars that were run below prescribe and enforce a were available, and within ten We should all use it more.

8 Law Society Gazette July 2005 Letters A step in the right direction Strawberry From: John J McCarthy, sole practitioners who run their at CPD courses, it would fields Ballincollig, Co Cork offices on a tight budget and on engender within the wish to refer to the letter of part-time and locum solicitors profession a greater sense of From: John Garahy, secretary, IRichard E McDonnell in last who practise only intermittently morale and a willingness to Wexford Solicitors’ Association month’s issue of the Gazette in or on a part-time basis to be attend the courses and thus n reference to the letter from connection with CPD. expected to pay for CPD may lead to greater IRichard E McDonnell I must support his view that courses, which are quite costly compliance into the future. regarding the costs of CPD should be provided for by to say the very least. Maybe at this early stage of continuing professional the Law Society without any As we are all aware, CPD is CPD and as a step in the right development, the cost of the additional charge. I think we now compulsory and may lead direction, the Law Society seminars run by the County are paying enough for our to disciplinary action being would at least consider Wexford Solicitors’ Association practising certificates and this taken or even being struck off subsidising the cost of these is €75 per seminar. We have should automatically cover the roll for non-attendance of CPD courses. arranged three seminars to date access to CPD courses without CPD courses. Are there any more solicitors in 2005 and anticipate arranging any further payment. Yes, it can I believe that if solicitors out there with the same two or three more prior to the be extremely difficult for some had not to pay for attendance viewpoint? end of the year. Send in the clowns Personal reflections From: Andrew J Cody, Solicitor, From: Brendan Fitzgerald, human legislator, must not Kildare Solicitor, Dublin contradict the natural law, that am curious about the Law he articles by Conal is to say, the eternal law of ISociety’s CPD course on TO’Boyle and Robert God’. ‘Circus Court litigation’. Pierse in the May issue of the In the scenario of Perhaps we are to be trained as Gazette on the Law Society’s Auschwitz and the Polish court jesters to compete with annual conference in Kracow experience, the natural law the fancy dress brigade were most interesting, as the seems to be the clear appearing in 18th century wigs conference was held in such a antidote and the true and gowns. historical setting and at such a philosophy of law based on As for the appointment of a historical time of the death of the nature and dignity of the presiding judge, there’s a Pope John Paul II, that great human person. difficult question! son of Poland. Our courts here have Robert Pierse’s article acknowledged that the considered the Auschwitz natural law is the basis of experience as providing the Constitution of Ireland as Oaths and affidavits serious thought to legislators evidenced by the preamble From: Frank O’Mahony, the first medieval knight took an on the distinction between and the fundamental rights O’Mahony Farrelly O’Callaghan, oath, the fear of hell’s fire or the law and justice. His quotation articles, as guaranteed to be Bantry, Co Cork value of his honour, or perhaps from Pope John Paul's last protected by the state, as find that the most usual res- both, influenced him. But it’s book, Personal reflections, being antecedent both to it Iponse of the busy businessman now 2005 and perhaps the oath seemed apt to the title and and to all positive law, and today who has been sworn is to and the affidavit are seen as sac- theme of his article. ‘The law as part of a higher law the effect of ‘where do you want red rites in a more secular world. established by man, by immune from change and me to sign?’ I imagine that when Time to go? parliaments and of every other inviolable.

FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD TEL: 668 1806 Meet at the Four Courts LAW SOCIETY ROOMS Courtat the Four Courts

9 Law Society Gazette July 2005 Cover story

Lords and m One aspect of Irish court procedure that non-lawyers find surprising is the mode of address used towards judges in the superior courts. Brian Conroy tugs his forelock and makes the case for reform

he man on the Cabra omnibus, weaned Probably unknown to himself, he was echoing the on Matlock and The Practice, tends to somewhat more strident comments made by a Mr assume that judges should be addressed as Sherwin in a Dáil debate more than 30 years before: ‘your honour’. Failing this, laymen at ‘I deplore hearing people falling over themselves, Tleast expect lawyers to use a term that is worshipping judges and justices … Apart from the fact not evocative of the British aristocracy. And yet it that we are now a republic, I do not think that we should remains the case that still, in the infant years of the persist in this servile form of address. If they addressed 21st century, a visitor to court will hear counsel people by titles like that in France during the Revolution, peppering their addresses with references to ‘my they would be sent to the guillotine immediately’. lord’ and ‘your lordship’. It would appear that this Reacting to Mr Sherwin’s comments in the course area of court procedure is over-ripe for reform. of the same debate, Thomas O’Higgins drew a very different picture of the history of these modes of Only our rivers address, finding their origin in the ecclesiastical law The obvious assumption would be that the mode of of this country: ‘It was suggested … that to address a address ‘my lord’ was brought here by the English judge as “my lord” or to refer to him in the third person after their invasion and occupation of Ireland and as “your lordship” was in some way a remnant of some was supposed to indicate the aristocratic standing of alien view and in some way servile and servient. Of the judiciary. On this basis, it is easy to dismiss the course, it has nothing to do whatever with the practice in use of the phrase as completely inconsistent with the the British courts and it is well that that should be said. It manner in which justice should be administered in a is part of the tradition which arises from the fact that the modern republic. Academics and practitioners seem forms in our courts are associated exclusively with canon to have avoided setting their thoughts on this matter law and with the ecclesiastical courts and the title “my on paper, but several politicians have made clear that lord” has come to us from the fact that in the years gone this is their understanding of the roots of this mode by it was the practice in the ecclesiastical courts that of address. applied. As frequently the presiding person in the old In a 1995 Dáil debate, John O’Donoghue, later to ecclesiastical court was a bishop, the title and style of become justice minister, dismissed the traditional address – “my lord” – was associated with these courts. mode of address as a colonial hangover: ‘Symbolic Although our conventions and relations between citizens vestiges of what one might describe as old Victorian are no longer based on the canon law, it has survived into • Mode of decency have no place in post-colonial Ireland. The time the ordinary law of the land. That is history and those address in the has come to express the view that this is a young republic who have taken part in the second reading, thinking that superior courts in a new Europe and that the addressing of a judge as they were having a tilt at something British, should re- • Need for “my lord” is now arcane, belongs to a different age. We do examine the way they are aiming their lances, because reform not have nobility or lords; insofar as there are lords, my they are not tilting at anything British; they are tilting at •Previous understanding is that they are attached to the British something which is part of our Christian heritage in this reform efforts

House of Lords’. country. I do not think that any Christian in this country MAIN POINTS

10 Law Society Gazette July 2005 Cover story masters? PIC: www.edeandravenscroft.co.uk

11 Law Society Gazette July 2005 Cover story of any denomination who recognises bishops in his religion recognising the inappropriate nature of the would regard it as being in any way wrong or servile or traditional modes of address, have tried repeatedly to in any way improper to address a bishop as “my lord”.’ reform them. At the time of the Dáil debates on the bill that was to become the Courts of Justice Act, Of gods and men 1924, there was fierce opposition from those Quite apart from the fact that in modern Ireland deputies who had links with the bar, as well as from there would be almost as many objections to drawing Labour deputies and from several independents, to a mode of address from a religious as from a colonial what were seen as government attempts to harness context, it is not clear that Mr O’Higgins’s analysis the independence of the judiciary. As regards the of the phrase’s historical origins is entirely superior courts, resistance centred around the issues persuasive. The terms ‘lord’ and ‘lordship’ were of mode of dress and address: it was felt that the bar unknown in the Brehon courts, and only began to be and the bench should be free to decide on the robes used here in courts that constituted part of the to be worn and the judicial titles used. administration of British rule. Hence, although the use of this mode of address may have been inspired Independence movements by canon law, it seems to have been drawn from In the Seanad, Lord Glenavy, who was then British ecclesiastical courts. So it would appear that chairman of the Judiciary Committee (having the historical origins of this mode of address are previously been both lord chief justice and lord both religious and colonial. chancellor of Ireland), launched a withering attack Regardless of its origins, it is clear that the phrase ‘The terms on section 35(6) of the bill, which purported to give ‘my lord’ is now generally seen as having the minister for home affairs power to make orders connotations of servility and colonialism. Thus, the lord and in respect of the mode of address to be used towards phrase ‘your honour’ was adopted in the courts of lordship were judges: ‘The sooner that clause is out of the bill, and a Australia, New Zealand and the United States corresponding clause dealing with other courts, the better, following independence. It has been said that the unknown in in my opinion, for the credit of the government. It will procedure before the Dáil courts that existed in the Brehon make for the removal of any possibility of their coming in Ireland between 1920 and 1924 was distinguished by conflict, in fact the certainty of their coming at a very an ‘absence of sonorous titles’, so presumably the courts, and early stage in conflict, with the bar and the bench, and, phrase was not used in those courts. And it appears only began to above all, for preserving, in this respect, the sanctity of that bishops in the Catholic and Anglican churches our constitution’. should now be addressed either as ‘the most be used here The opposition must have fallen on deaf ears, reverend’ or ‘the right reverend’. So any religious in courts that because the section duly became law. But, probably significance the phrase once had has now fearing that further outcries were certain to follow disappeared, leaving it to be associated almost constituted such action, the government deemed it impolitic to exclusively with a servile attitude towards the British part of the interfere with the traditional modes of address for nobility. the time being. The minister did go on to make This seems enough to demonstrate that the modes administration provision for the modes of address before the of address currently used have a very strong of British rule’ superior courts in the guise of order XXX, rule 1 of association with the British aristocracy, which makes the Rules of the High Court and Supreme Court 1926, their use inappropriate in a modern republic. And which provided that ‘every judge of the Supreme there are at least two more reasons for reform. Court and the High Court may be addressed therein First, the expressions ‘lord’ or ‘lordship’ are in the manner at present in use, or by the Irish unsuitable when a female judge is presiding. It has equivalent thereto’. been reported that Ms Justice Mella Carroll refuses Thus, the status quo ante was preserved, and judges to use the title and insists on being addressed as continued to be addressed as ‘my lord’. Of course, ‘judge’. The option of calling female judges ‘my the rules did give counsel the option of addressing a lady’, which has been adopted in England, is not judge as ‘a thiarna breithimh’. However, beginning a reasonably available here, because this would move pattern that has been repeated up to the present, the us even further towards a situation where Irish overwhelming majority of barristers refused to judges appear to claim aristocratic standing. replace the traditional mode of address with its Irish Second, there is the small matter of article 40.2.2 equivalent. of the constitution, which provides that ‘no title of nobility or of honour may be accepted by any citizen Soldiers of destiny except with the prior approval of the government’. It The situation continued undisturbed until the may be argued that the use of the current modes of initiation of the Courts (Miscellaneous) Provisions Bill, address conflicts with the spirit, if not the letter, of 1959. The Fianna Fáil government of the time had this provision. This is not to claim that a expressed its fervent desire to see the use of the constitutional challenge to the modes of address expressions ‘lord’ and ‘lordship’ discontinued, would have any chance of succeeding, but merely to primarily because of the concerns voiced about their emphasise how inconsistent with the ethos of our colonial and servile overtones. Section 45 of the bill constitution the current practice is. aimed to force the bench and bar to substitute less Since independence, elements in the legislature, deferential and more ‘Gaelic’ modes of address for

12 Law Society Gazette July 2005 Cover story PIC: [email protected] these expressions. The proposed section 45 was rules in 1961 been achieved, only the most gnarled phrased as follows: of practitioners would now recall a time when judges • The chief justice shall be addressed in court as ‘a were addressed as lords and lordships. However, the phríomh-bhreithimh’ provisions of the court rules as to mode of address • Each other judge and justice of the District Court have essentially been ignored for well over 40 years. shall be addressed as ‘a bhreithimh’ • Where a court consists of more than one judge, Change of address they shall be addressed as ‘a bhreithiúna’. The provisions of the Mode of Address Rules 1961 were replicated in the body of the Rules of the Predictably, the proposed provision was vehemently Superior Courts 1962 and then became order 119, opposed both by opposition politicians and by the rule 1 of the Rules of the Superior Courts 1986 – the legal profession. While an interesting aspect of the text is almost identical to that in the Mode of Address Dáil debates on the measure was that many of its Rules. opponents seemed more exercised about the But it appears that the provision has had almost inelegant Irish in which it was phrased than by its no effect in practice. Barristers in the High and substance, the primary focus of the outcry was again Supreme Courts almost invariably address judges the claimed interference with the independence of either as ‘my lord’ or, less frequently, as ‘the court’. bench and bar. Anecdotal evidence suggests that only a tiny The proposed section 45 was eventually deleted minority of barristers ever use the mode of address from the bill, ostensibly because the Superior Courts ‘judge’ when appearing before the superior courts. Rules Committee had undertaken to substitute new So amending the court rules has had little, if any, modes of address for the old expressions. The new impact on the modes of address actually used in the prescribed modes of address were contained in the courts – meaning that the result anticipated and High Court and Supreme Court Mode of Address Rules desired by those who proposed these reforms has not 1961: ‘the judges of the Supreme Court, the High come about. Court (including the Central Criminal Court), and There has been one recent initiative. When the the Court of Criminal Appeal respectively shall be Courts and Courts Officers Bill, 1995 was being addressed, in Irish or English, by their respective debated in the Dáil, John O’Donoghue proposed an titles and names, and may be referred to, in Irish, as amendment: ‘From the date of operation of this act, “an chúirt”, or, in English, as “the court”’. a judge sitting in any court shall be addressed as The government clearly believed that the result of “bhreitheamh” or “judge”’. the new rules would be that the old colonial mode of The then justice minister, Nora Owen, opposed address would be discontinued. the amendment, relying on the traditional argument Had the goal of the changes made to the court that undertaking such reform through legislation

13 Law Society Gazette July 2005

Cover story would interfere with the independence of the bench an interference with the and bar. However, she was willing to concede that independence of the the aim of the proposed amendment was laudable. profession could again be Michael McDowell also professed to support the raised, this possibility aim of the amendment, saying ‘the titles used are should not be of effectively Anglo-Norman titles which are not decisive appropriate any more’, but again argued that the importance, Superior Courts Rules Committee was the given the appropriate organ to deal with such reform. demonstrated The suggested amendment was eventually readiness of the withdrawn. But the whole discussion seemed to be legislature to based on the mistaken view that the Rules of the intervene in other areas of Superior Courts then in force provided that court practice. Opponents of reform could practitioners must address judges as ‘lord’ or legitimately argue that, if changing the court rules ‘lordship’ and that these rules could be amended so has not changed the practice, there is no reason why as to change the practice. The parties involved were a statutory amendment should do so. But this either unaware or had forgotten that the rules had ignores the fact that a legal practitioner is more been changed more than 30 years before and the likely to pay heed to a legislative provision than to a practice of calling judges ‘my lord’ survived merely mere rule, being aware more than anybody of the as a matter of convention. So the point that the risks involved in law-breaking. It would be a brave rules committee could do nothing more to reform and foolhardy barrister who would continue to court practice in this area was never raised. Had the address a judge as ‘my lord’ in the face of a true situation with regard to the rules been brought legislative provision that could be used by the court to the attention of the parties involved in the or by opposing counsel to take the wind out of his debate, a less deferential attitude to bench and bar sails at any time. might have been adopted. Wild colonial boys Tempus fuggedaboutit One final objection might echo Juliet’s ‘What’s in a It is abundantly clear that those responsible for name?’ A cynic might argue that the manner in regulating the modes of address, the legislature and which we address the judiciary is of no importance, the Superior Courts Rules Committee, have because what matters is the substance of the decision indicated their preference for reform. The handed down. But as Juliet discovered to her cost, stumbling block has been the difficulty in forcing names do matter, and it is important that Irish court the bar to change. In keeping with the King’s Inns practice does not continue to be blighted by the use motto of nolumus mutari (‘never shall we change’), of a nomenclature that is objectionable both because counsel appearing before the courts have clung to of its colonial connotations and its unsuitability in a the traditional mode of address, many of them modern context where men and women of all perhaps unaware that this approach to addressing backgrounds may sit on the bench. the judge has long since been devoid of a textual A legislative amendment abolishing and replacing foundation. the old modes of address once and for all would be a The only realistic means of changing the mode of welcome and necessary reform. G address used is through a statutory provision that makes it mandatory for counsel to address the court Brian Conroy is in his final degree year at the King’s using the simpler phrase ‘judge’ or, in the Irish Inns. This article is based on the essay that won the 2005 language, ‘a bhreitheamh’. While objections to such Law Society Student Law Reform Essay Compeition.

Where are you going this year?Ireland’s legal job portal

15 Law Society Gazette July 2005 Interview There’s something

MARWhen someone as volatile as Michael McDowell describes you as ‘fiery’, you’ve got to be doing something right. Straight-talking deputy director general Mary Keane tells Conal O’Boyle about her career and the challenges facing the profession

ary Keane is not backward in effort into a new and interesting topic. Or maybe coming forward. She has strong it’s just not politically correct to say anything opinions and she’s not afraid to positive about the legal profession’. share them. Which is just as well Msince the 43-year-old deputy Legally blonde director general is in charge of policy and Keane joined the Law Society in 1992 as policy communication. And she makes no bones about development executive. A barrister, she had spent a which policies should be communicated, and who’s number of years in the civil service before deciding to blame when they aren’t. to study law in UCD. A stint with Price ‘The media are very negative in Ireland, and not Waterhouse preceded her arrival at the society. just in relation to lawyers. If you were a martian Perhaps it was the fact that they shared the same who landed in Dublin today, you would think that civil service training, but Keane hit it off with the- lawyers were involved only in personal injuries work then director general Noel Ryan and quickly and in tribunals’, she says. ‘But lawyers facilitate the became his right-hand woman. Those were business community every day; they are involved in challenging times for the country and the protecting children and the elderly; they prosecute profession at large. Ireland hadn’t yet spawned the criminals and defend the innocent; they transfer Celtic pups who would eventually learn to relish property, form companies and resolve disputes – yet sun-dried tomatoes and advocate loudly the case for you won’t read much about any of that. eggs benedict on ciabatta bread. ‘It’s not as if the media don’t know about the ‘Noel was the most intelligent person I’ve ever good news stories; it’s just that they aren’t worked with’, says Keane, ‘in either the public interested. Let me give you an example. The Law sector or the private sector. He was a tough Society published a law reform paper on taskmaster, and anything you would propose he discriminatory planning conditions recently and had certainly made you go to the ends to prove the • Deputy a press conference to launch it. The topic is of value of what you were saying or to justify the director genuine interest to many people whose lives are argument you were making. I learnt an awful lot general affected every day by decisions made by the from him. He was a man of vision’. • Policy, planning authorities. But the report hardly got a She believes it was that vision that laid the communication mention in the papers. Yet you could paper your groundwork for the current growth and prosperity and member walls with the same old story being run and re-run of the solicitors’ profession. But that services about the 25 offers made by the Personal Injuries success has led some to feel that • Some straight Assessment Board. it’s time to take the talking ‘I suppose it’s just easier for journalists to profession down a peg

MAIN POINTS regurgitate PIAB’s press releases than put some or two. The

16 Law Society Gazette July 2005 Interview about Y PIC: [email protected]

17 Law Society Gazette July 2005 Interview MARY KEANEFACT FILE Education: Convent of Mercy, Claremorris, Co Mayo; BCL, University College Dublin, 1985; BL, King’s Inns, 1989 Career: Department of Industry and Commerce, 1980-1982. Companies Registration Office, 1985-1990; Price Waterhouse tax department, 1990- 1992; Law Society of Ireland 1992 to date Law Society career: Joined Law Society in 1992 as policy development executive. Appointed deputy director general in December 1996, at the tender age of 34. Appointed director of new department – Policy, Communication and Member Services – in December 1997

establishment of PIAB is a case in point – and Keane is not one bit afraid to tell it like it is. ‘If I had an injury in the morning, I certainly wouldn’t want my case adjudicated on by someone I’ve never met, who has never met me, and who operates out of a call-centre paid for by the insurance lobby. The only positive thing about PIAB is that at least it’s based in Ireland. At the beginning, there were rumours that it was going to be outsourced to India because that would save money on wages, but sense prevailed on that particular idea – at least for the moment. ‘Even though the on-going running costs will be ‘The picked up by the insurance industry, the establishment costs are paid by the exchequer. These solicitors’ costs have now exceeded €13 million. PIAB issued profession their first 25 assessments last month amid great fanfare, and they’re now up to 130. That seems like will weather a poor return, given that they’ve been operating the storm of since July of last year. We predicted that the real losers in the post-PIAB era would be genuine criticism claimants. It seems now that the country’s taxpayers levelled can be added to the list’. against it, Towering inferno but it needs Keane is unique in many aspects. She is the first and only female director in the history of the Law to do more Society. Ditto for deputy director generals. to help Once described by Michael McDowell as ‘fiery’, Keane was appointed by the justice minister to his itself’ Expert Group on Codification of the Criminal Law. She was also asked to be the external representative on the audit committee of the DPP’s Office. Her own particular areas of expertise include the Solicitors Acts, the Investment Intermediaries/Investor Compensation Acts and the money-laundering legislation as it affects solicitors. She may indeed be the country’s foremost expert in regard to the latter. She explains that the Irish money-laundering regime springs from an organisation called FATF – the Financial Action Task Force – which, effectively, is the unelected ‘world policeman’ in relation to suspected money-laundering. It was established at a G-7 (now G-8) summit held in Paris in 1989, with a commitment to combat international drug trafficking and organised crime. Membership

PICS: [email protected] currently stands at 33, with the EU counting as one

18 Law Society Gazette July 2005 Interview of that number. It’s a world club that any self- respecting democratic state would want to be a part of. All of the objectives of FATF are very laudable. And, of course, as a member of the EU, Ireland has signed up for the FATF agenda. So far, so good. However, as Keane points out, what we now have is a situation where solicitors have a statutory obligation to collect information on their clients and report them to the gardaí and the Revenue in circumstances where they ‘suspect’ that something dodgy might be going on. Even though the original aim was to combat international drug-trafficking or organised crime, the actual effect of the domestic legislation is to provide a source of information to the authorities primarily where there might be suspected tax evasion and welfare fraud. Some might say ‘so what?’ These are hardly defensible activities.

French connection Well, as Mary Keane would have it, if the state circulation of 10,000 each month, and a website that wanted to address its national tax or fraud issues in averages 10,000 hits per day. Within the next six this way, it should have done so openly and fairly. months, we’ll be launching an e-zine (a regular e- ‘To sneak in increased Garda and Revenue powers mail newsletter) to the profession and, at the same on the back of an international drug-combating time, we’ll be launching a campaign to encourage agenda is an abuse of the legislative process which greater use of the website by members. has led to a dilution of the fundamental right of ‘The profession is starting to appreciate the real solicitor/client confidentiality’, she argues. ‘I doubt if value of electronic information for their practices, very many drug barons have been prosecuted as a but there’s even more value for them if they take the result of these powers, but there’s probably a few time to familiarise themselves with our website’. grannies who have had surprise letters from the taxman. It’s reassuring to know that the forces of law The perfect storm and order are keeping us safe in our beds from such Keane believes that the solicitors’ profession will dreadful people’. weather the storm of criticism levelled against it, Mary Keane is living proof that if you want but that it needs to do more to help itself. She is something done, ask a busy person. Her department, typically forthright in her views but, given her called Policy, Communication and Member Services unique position, her analysis should make any (PCMS), is also responsible for the Law Society’s thoughtful solicitor think more deeply about the submissions to government, law reform initiatives, way he does his job. library services, public relations activities and the ‘The society can’t solve the profession’s PR provision of support services to the profession. problems’, she argues. ‘Solicitors have to do that for The society will shortly be recruiting a new themselves. And the key to that is providing a support services executive to co-ordinate and proper service, thinking about their clients, publicise existing services and develop new ones for answering their calls promptly, and providing the members. Keane believes that this initiative will service they purport to provide. The only way for deliver practical benefits because, for the first time, them to prosper is to work hard and to do the best members will know that there is a named individual by their clients. And I do think the vast majority of in Blackhall Place who will assess their requests and the profession actually does that, but the PR impact direct them to the relevant person or department. of those who don’t actually affects everybody. ‘The key to the success of the relationship ‘There is a widespread belief that all solicitors between the society and its members is the provision charge an absolute fortune and provide nothing for of information’, she says. ‘Our members aren’t it. Solicitors’ services are not cheap – there’s no terribly interested in “frilly” products, such as doubt about that – but then neither are consultants’ discount cards and promotional offers – those were services. If you get a good service from the the members’ services of the 1970s. What is professional that you go to, most people are happy important is that we deliver services that keep the to pay for it. It’s only when they don’t get the good profession informed and that distill the mountains of service they expect that they are unhappy about it. I data coming from government and the EU into know it’s hard to take the constant media battering manageable chunks. but that’s part of life. You just have to get over it’. ‘We have an excellent library and information In the meantime, you can rest assured that Mary service, used by almost 70% of law firms, with an Keane will be doing her damnedest to communicate average of 500 enquiries and book loans a month. the Law Society’s policies even to those who don’t We have our award-winning Gazette, with a want to listen – using both barrels if necessary. G

19 Law Society Gazette July 2005 Contract law

CONTRACT LAW: an opportunity for ref Irish contract law is a mess, and EU intervention in the area is not much better. Now the EU has decided to embark on a process of reform, and the scope and ambition of what it contemplates is breathtaking. Paul Keane reports

ontract law is at the heart of all insurance business to operate on an EU-wide basis. business transactions. Irish contract In Ireland, we have transposed directives, law has evolved through judicial particularly in the consumer area, in a lazy way, by decisions and piecemeal legislative simply deeming them to have full legislative effect. Cintervention. In recent years, a great In many cases, we have not bothered to place the deal of that intervention has been driven by directive within the existing Irish legal context. For directives promulgated by the EU, mainly for the example, the Unfair contract terms directive was protection of the consumer. adopted by statutory instrument without a backward It has long been recognised that there are major glance at the over-lapping provisions of the Sale of difficulties with the EU legislation (the so-called Goods and Supply of Services Act, 1980. Our ill- ‘acquis’). The acquis is inconsistent, does not define considered approach has also meant that no effort terms, or, where it does define them, uses them has been made to correct or filter the errors in EU differently in various parts of the acquis. Some parts legislation in the course of implementation in of the acquis provide for different rules in similar Ireland. situations. There are even examples of In 2001, the EU Commission launched a process inconsistencies in the one directive. of consultation and discussion about the way in At national level, there are further difficulties. which problems resulting from the divergences Directives merely set a minimum standard for between national and EU contract laws should be harmonisation of the basic rules in a particular area dealt with at European level. In February 2003, the • Confusion in and are intended to be elaborated upon and commission communicated an action plan to the Irish and implemented by national legislation. There are, European Parliament and the council. The action European however, substantial differences in the manner in plan suggested a mix of measures in order to solve contract law which directives are implemented throughout the these problems. • EU review of EU. The result is that, even in areas governed by the the entirety of acquis, there are divergences between legal rules The way forward contract law throughout the EU. In its document The way forward, published in • Law Society In some sectors, such as the insurance sector, October 2004, the commission set out its proposals response where efforts have been made to create an internal in relation to three measures that had been identified

MAIN POINTS market, such divergences make it very difficult for an in the action plan:

20 Law Society Gazette July 2005 Contract law eform

• To increase the coherence of EU contract law. This is the main focus of the commission’s activities • To promote the use of EU-wide general contract terms. This is to be done by the establishment of a specific website to promote the development and use of EU-wide standard contract terms. In effect, this will merely be a platform for the exchange of information between industry groups on existing and on planned EU-wide general contract terms. The Coherence of commission, however, will have no hand in the EU contract law preparation or approval of these contract terms. The commission is This is a measure that can be implemented adopting a twin-track immediately approach. It will itself • To examine the usefulness of the adoption of embark on an exercise an optional instrument. An optional instrument of examining how consumer is a statement of contract rules that parties could protection rules are being applied adopt and adapt for their own purposes. and what effects they are having. This will identify areas of consumer law that require urgent attention. The development of an optional instrument, On the other hand, the commission wants to however, is only a possible project. It will only be develop a handbook of contract law that would serve initiated if it is concluded that it would be useful to as a statement of the common rules in European have such an optional instrument. But the mention contract law and that would be available as a of such a possibility has awakened in certain quarters framework within which new and amending fears of a conspiracy to subvert the sanctity of legislation would be drafted. The commission calls national laws through the creation of a pan- this framework a ‘Common Frame of Reference’ European civil code. The fact that researchers (CFR). It has appointed a consortium of researchers, chosen by the commission had been part of a group whose task will be to prepare the CFR. working on such a civil code was seized upon as The action plan had suggested that the CFR further evidence of such a conspiracy. The would set out principles, definitions and some model commission has been at pains to say that no such rules of contract law. However, The way forward decision has been made and that, indeed, at the proposes a much more elaborate document. It sees moment there does not exist the legal or political an initial chapter setting out the common basis for any such decision. fundamental principles of European contract law

21 Law Society Gazette July 2005

Contract law and the exceptions to those principles. A second In order to ensure that the society would deal with chapter would set out definitions of legal terms. A the matter in a structured fashion, it engaged third chapter would set out model rules. The Professor Robert Clark to prepare a detailed briefing headings for the suggested model rules indicate a document for the information of the relevant comprehensive restatement of the law of contract. committees and representatives of the society. The researchers are expected to deliver a final The society was also represented (by myself) at report by 2007. That report will contain a draft of two workshops held in March 2005. The first one the CFR. By 2007, the commission will also have related to services, including specific areas such as identified the elements of the existing consumer construction, processing, storage, design, legislation that need to be reformed. After the information and medical treatment. The other dealt publication of the researchers’ report, the with the not-inconsiderable topics of commercial commission will prepare a green paper. There will be agency, franchise and distribution agreements. a period of political consultation, and the intention is that the CFR should be adopted by the commission Why should we bother? by 2009. Even if the CFR were to be used exclusively as a The commission has prepared a timetable of handbook for the commission’s own legislative workshops to take place in 2005 and 2006. These purposes, it is important that Ireland’s specific workshops are to deal with the proposals of the concerns be taken into account in the preparation of researchers in relation to each of the areas of such a restatement of the law. Of course, we and the contract law that will build to a comprehensive UK are the only countries in Europe that have restatement. The commission has also established a adopted the common law. We have an interest, network of experts on contract law (the ‘CFR-Net’). accordingly, in making common cause with our The CFR-Net is intended to be composed of experts neighbours. nominated by stakeholders, who will review the work However, if the CFR does develop as a generally of the researchers from a practical point of view. recognised restatement of the law of contract in Europe, it becomes all the more important that we Law Society’s response do our utmost to ensure that it suits our legal and The Law Society has taken a leading role in Ireland commercial environment. in relation to the commission’s proposals. The Apart from these European considerations, a commission organised a major conference in May European restatement of the law of contract could 2004 to consider the action plan. There were 300 serve as a basis for a co-ordinated and structured delegates representing stakeholders and governments reform of our own contract law. Such reform is long from all over Europe at that meeting, which was overdue. G addressed by the-then Irish commissioner, David Byrne. The Law Society was the only Irish Paul Keane is managing partner of the Dublin law firm organisation represented. The society was also Reddy Charlton McKnight and the Law Society’s repre- represented at the conference to consider the Way sentative to the network of experts on contract law estab- forward document. lished by the European Commission.

23 Law Society Gazette July 2005 Legal profession SCOTCH ON

Like its counterparts in this country, the Scottish legal profession is coming under scrutiny from consumer and competition bodies. Paul Rogerson brings us up to speed on what’s been going on

cotland’s 10,000 lawyers are jealously Sceptics were handed further ammunition when • Scottish legal proud of the nation’s independent legal respected consumer watchdog Grahame Horgan, profession system. To some observers, it appears as principal enforcement officer at the OFT, was • Clementi magisterially remote and immutable as manoeuvred off the taskforce following protests by the report Sthe serene facades of Edinburgh’s law society. Duncan Murray, the society’s president, • Alternative Georgian New Town. However, Sir David Clementi’s alleged in correspondence that Horgan was guilty of a business government-commissioned report revolutionising the ‘conflict of interest’ and had ‘compromised’ the structures provision of legal services in England and Wales has group’s work. In particular, Murray said, an OFT plan

MAIN POINTS thrown the Scottish profession into something of a to investigate the society’s ban on solicitors paying ferment. The issue of how – and indeed if – Scotland referral fees breached an assurance by Horgan that no should accommodate similar reforms has exposed deep additional formal OFT action was planned over divisions that are proving difficult to bridge. society rules. The 9,000-strong Law Society of Scotland has Murray first demanded that Horgan be replaced in voiced little enthusiasm for Clementi but has steered a letter to OFT director general John Vickers in clear of outright hostility, to nobody’s surprise. To October 2004. ‘Let me state, for the record, that the adopt an unequivocal policy stance would be awkward, society has no intention of subverting either EU or because the body’s ruling council is itself split on how UK competition law’, Murray assured Vickers. ‘The to deal with the issues the report raises. society is of the view that the work of the group is A further headache is presented by the compromised by the presence of Mr Horgan’. devolutionary process that created the Scottish Horgan, the OFT’s professional services expert, Parliament in 1999. Were Clementi-style reforms to be agreed to step down in favour of another OFT official, introduced in Scotland, they would involve a Alan Williams. He managed a parting shot, however. fundamental shake-up of legal regulation, which is a Horgan warned the society that its tariff of matter for the Scottish Executive. However, ensuring recommended charges – the so-called ‘table of fees’ – fair competition in legal services is a matter ‘reserved’ might breach competition law. This raised the to Westminster and falls within the remit of the prospect of a full-blown OFT investigation, amid London-based Office of Fair Trading (OFT). All very suspicions that the law society had been co-ordinating unsatisfactory. So, who gets to call the shots? the pricing of solicitors’ services ranging from simple phone calls to complex property deals. The society Horse of a different colour pre-empted any further action by scrapping the ‘table Cathy Jamieson, justice minister at the Scottish of fees’ a few days after the watchdog’s warning was Executive, attempted to address the issue last year by made public. launching a review of Scotland’s legal services markets Scottish ministers are unconcerned by the working that ran in parallel with renewed efforts to update party’s apparent domination by solicitors and regulation (see panel). The forum was expected to advocates, but some who want to compete with report six months ago, but has yet to do so. lawyers on their own turf are not. One aggrieved party Whatever its findings, questions have already been is the industry body representing patent attorneys, the asked in the Scottish Parliament about the forum’s Chartered Institute of Patent Agents. CIPA wants the credibility. The group has about 20 members, Scottish Executive to sweep away the ban on people including civil servants and academics, but consumers other than solicitors and advocates being paid to are directly and independently represented by just represent clients in Scottish courts. The institute three – representatives of the Scottish Consumer asked for a berth on the working group to press its Council (SCC) and Citizens’ Advice Scotland, and the case, but was rebuffed. OFT. The law society alone has at least two direct and Both the OFT and the Scottish Consumer Council one indirect representatives – including chief executive have backed the amendment of the Law Reform Douglas Mill and lobbyist Michael Clancy, who is the (Miscellaneous Provisions) (Scotland) Act 1990. Certain society’s director for parliamentary liaison. sections of the act, which were never commenced,

24 Law Society Gazette July 2005 Legal profession THE ROCKS

the 1990 act – in particular, the introduction of solicitor-advocates – had been given time to bed down. Precisely why the commencement process was never set in train remains unclear.

Closing the stable door The stakes were raised further this year when it emerged that the last Conservative administration at Westminster set a target date of mid-1996 for commencing sections 25-29, years before the Scottish Parliament was established. Yet nearly ten years later, the sections remain to be commenced. Critics of the legal profession stress that greater competition could pose a threat to some lawyers’ fees by offering cheaper alternatives to consumers. Another key proponent of reform in Scotland is the fledgling Association of Commercial Attorneys, a lobby group comprising individuals with law degrees and fellows of the Chartered Institute of Arbiters. One of the association’s members, Bill Alexander, petitioned the Scottish Parliament in January 2003, demanding that sections 25-29 be commenced. He argued that the solicitors’ monopoly ‘has resulted in huge costs to the private and public sector and has also resulted in instances where parties cannot afford their legal rights’. ‘The only reason some solicitors can charge £200 an hour is because that monopoly exists’, he has said. Harsh words. Yet it would be wrong to suppose that all is sweetness and light within the profession itself. Consider Clementi’s proposal that law firms should be allowed access to external capital. Dundas & Wilson, the nation’s second-largest law firm, fired a remarkable shot across the bow of the profession’s conservative tendency recently when it warned that it could abandon Scotland if denied those rights. Not literally, of course. Senior partner Chris Campbell said D&W would simply channel its services through the parallel limited liability partnership it has incorporated for its London office. However, if one of the nation’s most respected legal firms were to become an English firm with a Scottish Donald, where’s your outpost, this would be viewed as the thin end of the would allow interested parties to apply for rights of troosers? wedge. Other major indigenous firms with English audience in a Scottish courtroom. Such a concession offices would surely follow suit. Petrol was poured already exists in England and Wales in relation to onto the flames again when Clementi himself made a members of both CIPA and the Institute of Legal rare foray north of the border. The cream of the Executives. profession turned out to hear him speak at their To ensure the passage of sections 25-29 at the time spiritual home, Edinburgh’s Signet Library. of the original bill, ministers gave an undertaking that As befits a former deputy-governor of the Bank of they would not be implemented until other reforms in England, Clementi was discreet, avoiding speculation

25 Law Society Gazette July 2005

Legal profession KEEPING IT REGULAR Cathy Jamieson, justice minister at the Scottish Executive, recently published a consultation paper proposing changes that would remove ultimate control over the resolution of complaints about Scottish lawyers from the governing bodies, the Law Society of Scotland and the Faculty of Advocates. The paper suggests that piecemeal reforms have failed to win public confidence. Pressure on the executive to act has intensified as the law society and bar council south of the border have moved to separate their representative and regulatory functions. Public complaints over how Scotland’s lawyers are regulated have soared since 2001. In that year, the regulator of last resort, the Scottish Legal Services Ombudsman, received over 100 complaints about the way the law society and faculty handled complaints about their members. In the year to 31 March 2005, she dealt with over 500, a 27% rise on 2004 alone. Over 90% were about the society. The Scottish Parliament’s Justice 1 Committee produced a string of recommendations for improving complaints-handling three years ago, while endorsing the regulatory role of the professional bodies. Controversially, however, the committee’s suggestion that the ombudsman’s powers be enhanced was ignored. The executive also failed to act at that time on the proposal that her office could act Clementi: potential for regulatory overload as a ‘clearing house’ for all complaints about lawyers and that she should monitor the progress of those complaints. Connell told Clementi. ‘I am already in an MDP, but At present, the ombudsman, who is not a lawyer, can only get involved when a under the current regime I have to employ non- client’s attempts at resolving their complaint with either the lawyer or professional lawyers. I would like them to be able to be involved in body have failed. Even then, she has no power to force the society or faculty to our business’. comply with her recommendations on matters such as compensation. The two bodies Clementi responded by pointing to the potential for can, and frequently do, ignore them. regulatory overload. ‘My view is that we cannot get to The options outlined in May’s consultation paper include strengthening the grips in England and Wales with MDPs before we get ombudsman’s powers and setting up a totally independent complaints-handling body to grips with LDPs. In a few years it could work, and with a non-lawyer majority. The law society, in particular, is lobbying hard to retain its we could see lawyers working alongside accountants’, regulatory function, pointing to the improvements it has made in recent years. These he said. include 50% lay representation on society committees and more expeditious handling Some believe that it is in this latter respect where of complaints. Clementi’s proposals could be disproportionately The society has also called for legal powers to discipline solicitors for their conduct beneficial to Scotland – a geographically diffuse market and suspend a solicitor who does not co-operate with a complaints investigation. with many small and far-flung professional firms. Douglas Connell certainly believes that a relaxation of the rules on ‘one-stop shops’ could have major benefits in his speech about how his reforms might affect for small, professional services providers across Scotland. More interesting was the question-and- Scotland, a lot of whom he believes are at serious risk answer session, when he was taken to task by Douglas of failure. Connell, joint senior partner of top Scottish private ‘They should be able to share overheads. There is client law firm Turcan Connell. an opportunity for us in Scotland to take the lead and Remarkably, Connell accused Clementi of being ‘The Law create a structure that meets clients’ needs’, he said. insufficiently radical, not a charge that has been Interestingly, the heads of Scotland’s leading levelled at the Prudential chief too often in recent Society of accountancy bodies have said they will be seeking talks months. He voiced disappointment that the report Scotland has with the law society to consider any opportunities that settled on the ‘half-way house’ of legal disciplinary may arise from the possible relaxation of rules on law partnerships (LDPs), under which non-lawyers such as voiced little firm ownership. human resource or finance directors would be able to enthusiasm for So where now for the Working Group for Research take an ownership stake in a law firm. The Turcan into the Legal Services Markets in Scotland? It seems Connell supremo wants official sanction for full- Clementi but that the forum will consider its final report at a fledged multi-disciplinary practices – in which has steered meeting on 23 June. Yet this may not mark the end of accountants, lawyers, financial advisers and other the debate. At the latest meeting for which minutes are professionals could co-own ‘one-stop shops’ for clear of outright available, in April, the group agreed to consider professional services. hostility’ whether it should reconvene ‘at a later stage’ to think about a further phase of work on wider issues such as Merger, she wrote the Clementi proposals. One had assumed that was its The demand stems from personal experience. Along remit all along. with Robert Turcan, Connell led the demerger in It may be some years yet before Scotland sees a 1997 of the private client business of Dundas & significant liberalisation of its legal services sector. G Wilson into Turcan Connell, whose employees include fund managers, accountants and actuaries. Paul Rogerson is business correspondent with the Scottish ‘I think your report was lacking in boldness’, newspaper The Herald.

27 Law Society Gazette July 2005 Gadgets Tech trends

What do you mean, you don’t have a chimp? ou know how it goes. You password. This is very useful long as it only recognises Ystep out of the office for a indeed, because if a room full human prints, no-one will be sandwich and as soon as your of monkeys can reproduce the making a monkey out of back is turned, some cheeky complete works of Shakespeare, you. chimp is at your laptop trading how long do you think your The IBM ThinkPad X41 bananas on e-Bay. And when password will last? costs from €2,370 you get back, the hairy-handed And just in case, the X41 excluding VAT and is horror has deleted all your also features a rescue and available from computer work. Well, now you need recovery application that can stores nationwide. suffer the indignity of ape- re-boot the system if there’s a related IT failure no longer. problem. With a 12.1-inch The IBM ThinkPad X41 screen and, weighing in at just features a biometric security over a kilogram, this might just system, scanning your be the laptop for fingerprint for access rather paranoid than using a traditional weaklings. And as Called to the mini-bar he Duke of Wellington’s Edmund was eventually laid end Tyounger brother Edmund to end in a shallow grave. actually on the market. You finally came a cropper when he Kipling wrote a poem. A nation can’t buy it, as it was only was a participant in one of mourned. Stick to baking cakes, available as a prize in an Asahi Zanzibar’s somewhat rare you bastard. Things might have beer company competition. flagrantly gay marriages. Like a turned out altogether differently But it makes you think. What stalwart from the TV show had Edmund purchased an would Edmund have done? Dad’s Army, Edmund was of the Asahi DVD beer fridge (or Kipling perhaps said it best: opinion that the denizens of the ‘refreshment centre’, as they’re ‘Stop calling me at home. I’ll Dark Continent didn’t like it up now apparently known). This have the police on you’. There them. How right he was. thirst-quenching beauty isn’t you have it. Badger or PDA: which would you choose? umbersome things that particular dream. viewer. Apparently, it can store Cbriefcases, aren’t they? The LifeDrive is billed as a 300 songs, 1,000 photos, 21/2 Many of those in daily use are hand-held device that can carry hours of video, 1,200 approaching the size of young all the data that users need. Microsoft Office documents, badgers and are just as You hear that? All the data. 10,000 contacts, 10,000 unwieldy. You’ll know what I Not only that, but according to appointments, 20,000 e-mails mean if you’ve ever tried to the website, it’s ‘the perfect and 50 voice memos – all at man-handle a badger into the companion for your digital the same time. office. Makes you think about lifestyle’, whatever that means. If you actually know that whatever happened to Ok, here’s the science bit, many people, you’ve really got that paperless office because you’re worth it. It’s got to ask yourself: what the hell the sociologists to be just a four-gig hard drive, high- are you doing hanging out used to harp on personal digital resolution colour display and with young badgers? about? Well, the assistants, don’t built-in wi-fi and bluetooth For more information, see new PalmOne LifeDrive you know) might be support, along with e-mail www.palmone.com. The ‘mobile manager’ (they used a step closer to living support, MP3 player and photo LifeDrive costs around stg£329.

28 Law Society Gazette July 2005 Gadgets Fly, my pretties fly!

o paperless office. No café suppose a disclaimer might be step seem like you’re walking on Nsociety. When will science in order here: they're not really the moon’. Without the asphyxia fiction stop cruelly raising our ‘anti-gravity’; they don’t and hypothermia, we sincerely expectations? At least we can contradict the laws of physics in hope. Now, let’s all get that wee emulate the monkey minions of any way. On the other hand, girl with the ruby shoes. the wicked witch of the west they do allow you to ‘jump into Air Kicks Anti-Gravity Jumping with our new anti-gravity the air or bound across the yard Boots are available from jumping boots. Although I like a gazelle’ and ‘make every www.play.com for about stg£100. Sites to see

Run for your lives! (www.geocities.com/bob_chob1/monkeys). It Working with weasels (www.weaselnomore.com). Golf courses have seems the Gazette was right, for once. In November 2003, we gophers, offices have weasels. What to do? Well, help is at hand at predicted the chaos that can ensue from the marriage of tech- weaselnomore. Learn to recognise the weasel (‘shifty, beady eyes; nology and ape. Now our worst fears have been confirmed. This large heads, representing their overwhelming egos; and paranoid site proves it. There’s ‘confirmation’ from the ‘CIA’: ‘all the robot reactions to any questions about their actions’) and study weasel monkeys have turned evil. If they aren’t destroyed, the world as economics (the customer is always wrong, a true weasel can’t get we know it will end’. We hate to say it, but we told you so. fired, and a management weasel ‘shouldn’t have to do shit’).

Is somebody following me? (www.morristribunal.ie). You feel Kildare’s finest (www.kildare-nationalist.ie).While the remaining you should read it, but it runs to nearly 700 pages and weighs Gazette staff will struggle bravely on, those seeking the original, more than a small piglet. You’d download it to your PDA and and some might say the best, source of up-to-date information read it on the train, if only that particular technology was up to on badgers, battles and fictitious younger brothers can follow speed. So digest the Morris tribunal report at your desk in our ‘esteemed’ editor to the Kildare Nationalist, that county’s comfort. It’s all there, but you’ll never pass through a most nationalistic newspaper. Tickle your own fancies by trying checkpoint without sweating again. Piglets are tricky. to guess his suggestions for a novel use of the Curragh.

29 Law Society Gazette July 2005

Books Book reviews A practitioner’s guide to the European convention on human rights (second edition)

Karen Reid. Sweet & Maxwell (2004), 100 Avenue Road, London NW3 3PF. ISBN: 0421-875-909. Price: stg£99.

he limited number of Irish a straightforward way, the practitioners, the book is a Tcases decided by the range of situations and legal useful starting point rather European court (just over a problems that fall within the than a detailed exploration of dozen) might lead practitioners scope of the ECHR. It is issues. Stress is laid upon fair to view Karen Reid’s guide to particularly good on trial guarantees such as access the ECHR as of largely procedure, stressing the to court, adequate time and academic interest. That would tension that exists between the facilities, equality of arms, and be a mistake. The European minimum of formalities and the right to silence. However, Convention on Human Rights fees involved in bringing a case topics not always associated Act, 2003 incorporated the before the court and the very with human rights protection ECHR into Irish law, and strict time limits that can are also covered: pensions, knowledge of its provisions and represent traps for the unwary. planning and use of property, supporting case law are an She does not shy away from and tax and welfare benefits, to increasing requirement for highlighting the system’s name a few. lawyers who will be expected to drawbacks. The admissibility In the six years since the first plead convention issues in Irish threshold is high – at most, edition, the jurisprudence of courts. one in ten cases succeeds in protections are highlighted. the ECHR has evolved. These Karen Reid is an insider. She crossing it – delays can be The book is not wedded to the changes are comprehensively has worked at the European great, and compensation and provisions of the ECHR. This dealt with in Ms Reid’s book. Commission and at the Court costs are limited. is an advantage. Each area As this process continues, one of Human Rights for 19 years. In dealing with substantive covered usefully outlines the hopes that Ms Reid will be She is currently head of an guarantees under the ECHR, key provisions of the around to record it. G applications unit in the registry the book usefully divides topics convention and relevant case of the court. Her book is a into ‘problem areas’. Issues law, but does so in an Michael Kealey is a solicitor with practical one, which outlines, in rather than convention accessible fashion. For the Dublin law firm William Fry.

Intellectual property law in Ireland (second edition) Robert Clark and Shane Smyth. Tottel Publishing (2004), Fitzwilliam Business Centre, 26 Upper Pembroke St, Dublin 2. ISBN: 1845-920-201. Price: €150.

r Justice Brian this jurisdiction) has greatly does not easily fit into the MMcCracken, in his expanded since the first more traditional categories foreword to the 1997 first edition. The main copyright under Irish law. Ireland has edition of this work, posited legislation in Ireland in 1997 also joined the Madrid protocol, that there might be a prima facie was the Copyright Act, 1963, but adding to the methods of case for professional negligence this has now been replaced by trademark registration available against any solicitor, barrister, the gargantuan Copyright and to Irish clients. All of these patent or trademark agent who Related Rights Act, 2000, which new developments are treated did not have this book in their runs to over 370 sections. The in the second edition. library. High praise indeed, and Industrial Designs Act, 2001 also Domain names and the it neatly illustrates the place this came into force since the last issues that arise with their book has among specialists in edition, and this is an registration are dealt with in an this growing area of law. increasingly commonly used introductory chapter to The law in this area (and the form of protection for clients trademark law. The dispute number of practitioners in it in whose intellectual property resolution procedure

31 Law Society Gazette July 2005 Books introduced by the not-for-profit houses and galleries have of the impoverished artist’s heirs of software to the emergence of organisation ICANN for opposed the introduction of this living a frugal life while the database rights and beyond, are dealing with them is law on the basis that, as sales price of their loved one’s works impressive. The decisions of the comprehensively examined. It outside the EU are not captured escalate exponentially with the European Court of Justice from has been successfully (and by it, it may mean a great deal passing of every year after his or November 2004 in the BHB and relatively inexpensively) used by of Irish art will be sold out of her death and the rights of William Hill cases are also dealt many Irish companies to evict New York to avoid it. galleries, who often support with, despite the proximity of so-called ‘cyber squatters’ from Interestingly, a similar right artists who do not achieve high those cases’ publication to the web addresses that are either exists in Californian law under prices even after death, to make publication of the book itself. similar or confusingly similar to its Resale Royalties Act 1977. It a living. Indeed, the origins of Space does not permit me to their trademarked or used was widely hoped (by artists, if the French law introducing the list in full the topics covered, name. not by galleries) that a US-wide droit de suite in 1920 were said but this book should be Another topical area this federal law would follow, but to be from a public revulsion at purchased by anyone, whether edition gives more space to is this has not happened. the impoverished circumstances practitioner, in-house lawyer, the droit de suite that will shortly Clarke and Smyth’s deft of the widow and children of academic or student, interested form part of Irish law. This law, treatment of the EU directive the realist painter Jean-François in this increasingly complex field a concept originally taken from on this topic (which must be Millet while his paintings of law. The authors’ enthusiasm French law, will ensure that an implemented by next year), fetched record sums in auction for their chosen field, combined artist (or his estate) will have the along with Australian and rooms and galleries. with a comprehensive index, right to a percentage of re-sale German cases in the field Robert Clark, a professor at makes this an excellent second profits from his paintings as his should be required reading, not UCD, and Shane Smyth, a edition of a by-now seminal or her reputation (and the price only for intellectual property partner at FR Kelly & Co, are legal text. G of his or her work) increases. lawyers but for gallery owners rightly regarded as powerhouses The right would remain for as and art dealers generally. Clarke in their field. The breadth and Jeanne Kelly is a senior associate in long as the work was in and Smyth balance the opposing depth of the topics covered in Dublin law firm Mason Hayes and copyright. Many Irish auction rights here between the cliché this work, from the patentability Curran.

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32 Law Society Gazette July 2005 Briefing Practice notes EU SAVINGS DIRECTIVE: RELEVANCE FOR IRISH SOLICITORS ELECTRONIC he EU Savings directive has funds, any payments of such inter- residence of the beneficial SEARCHES IN LAND Tbeen implemented into Irish est by the Irish solicitor to an indi- owner should be reported in REGISTRY law and requires that details of vidual resident in (a) another EU accordance with the information ractitioners are warned to certain cross-border interest pay- member state, or (b) a depend- already at the disposal of the Pbe very careful if carrying ments made on or after 1 July ent/associated territory of a mem- paying agent. This should corre- out Land Registry searches 2005 are disclosed to the ber state (for example, the spond to the information already electronically over the internet. Revenue Commissioners. The leg- Channel Islands or the Isle of Man) on record under the ‘know your It is not sufficient to think islation potentially impacts on the together defined as a relevant ter- customer’ rules in accordance that you are in the clear by sim- business of solicitors. This prac- ritory will be reportable under the with the money-laundering provi- ply clicking on the information tice note highlights some areas of legislation. sions dealing with the folio only. potential impact, but it is not a The solicitor will be deemed to b) For contractual relations entered Bespeaking a copy of the folio comprehensive summary of the be a ‘paying agent’ (within the into on or after 1 January 2004 from the Land Registry elec- legislation. Practitioners should meaning of the legislation) and will or as regards a transaction tronically will not show dealings review the legislation and the therefore be required to report the entered into in the absence of pending, and it is important Revenue guidelines to determine payment of such interest to the contractual relations on or after that you click on that section whether they are affected by it. Revenue Commissioners in addi- that date, the name, address, marked under that heading in Council directive 2003/48/EC tion to reporting the details of the country of residence and tax or order to ascertain the dealings on taxation on savings income in recipient client. The Revenue other identification number (TIN) pending. the form of interest payments was Commissioners will in turn should be reported. (If there is Enquiries should also be adopted on 3 June 2003. The aim exchange this information with the no TIN or if the TIN is not avail- made from law searchers as to of the directive is to provide for tax authorities of the relevant ter- able, the date and place of birth whether they are doing a full effective taxation of savings ritory in which the recipient client of the beneficial owner should search or not. income throughout each member is resident. be reported.) Practitioners should also state by the exchange of informa- note that, when searching and tion between member states on Type of information to be The directive also has potential bespeaking up-to-date folios, interest paid from one member exchanged implications for an Irish partner- at the moment the Land state to individuals resident in The legislation requires that paying ship of solicitors and an Irish sole Registry will, in many other member states. Austria, agents need to report details to practitioner holding client funds in instances, only show the reg- Belgium and Luxembourg chose to the Revenue Commissioners a foreign bank account on behalf istration of the last registered apply a gradually increasing rate of about (i) themselves, (ii) the inter- of an individual resident in a rele- owner, and consequently the withholding tax instead of est payments they make, including vant territory. history of the folio will not be exchanging information with other the account number associated There may be an obligation in available unless you ask for member states. with the interest payment or infor- such circumstances for the solici- the folio from its inception. Each EU member state must mation identifying the asset giving tor or firm receiving an interest Although you can get a copy implement the directive with effect rise to the interest payment (if payment from the foreign bank to of the file plan over the inter- from 1 July 2005. Ireland imple- there is no account number), and report details of the receipt and for net, the Conveyancing mented the directive into national (iii) the persons to whom they whom it is held to the Revenue Committee recommends that law as part of the Finance Act, make those interest payments. Commissioners. a purchaser at all times is 2004 and the provisions of the In relation to the information to The Revenue Commissioners’ entitled to a Land Registry cer- directive can now be found in be reported on the clients receiv- Guidance notes for paying agents tified copy folio and file plan. It chapter 3A of part 38 of the Taxes ing the interest payment, there are on the Irish legislation implement- is not sufficient to bespeak a Consolidation Act, 1997. different obligations imposed on ing the Savings directive, which is copy of the folio and then add paying agents depending on when available on the Revenue website, on an old or previously How could the Savings directive contractual relations have been contains more information on the obtained original file plan, impact on Irish solicitors? entered into: directive and the Irish implement- because the file plan could If an Irish solicitor has client funds a) For contractual relations entered ing legislation. have been subject to a change in an account with an Irish bank into before 1 January 2004, the Probate, Administration and since originally printed. and interest is accruing on such name, address and country of Taxation Committee Conveyancing Committee

LAW SOCIETY GARDA STATION (LEGAL ADVICE) SCHEME OF IRELAND ON ees for consultations under the plus VAT, with effect from 1 with effect from 1 June 2005 E-MAIL FGarda Station (Legal Advice) June 2005 • Telephone consultation: Scheme have been increased. The • Visit between 7pm and 9am €46.38 plus VAT, with effect Contactable at [email protected] fees are as follows: (Monday to Friday and from 1 June 2005 • Visit between 9am and 7pm on weekends and bank Individual mail addresses take the form: (Monday to Friday): €113.91 holidays): €154.90 plus VAT, Criminal Law Committee [email protected]

33 Law Society Gazette July 2005 WHERE THERE’S A WILL THIS IS THE WAY…

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LEGISLATION UPDATE: 21 MAY – 17 JUNE 2005 Details of all bills, acts and sea 1996, and also gives effect to new order 61A (‘section 40 Civil apply. Insert a new order 1A statutory instruments since the 1996 protocol to the Liability and Courts Act, 2004 (‘procedure by personal injuries 1997 are on the library cata- International convention on limita- requirements’). Section 40 of the summons’) in the rules and logue – www.lawsociety.ie tion of liability for maritime claims act deals with proceedings held amend orders 1, 4, 13, 13A, 19, (members’ and students’ area) – 1976; amends the Merchant otherwise than in public. The new 58, 121 and 122 with updated information on the Shipping (Liability of Ship Owners order 61A prescribes the proce- Commencement date: 2/6/2005 current stage a bill has reached and Others) Act, 1996 and the Oil dure to be followed in respect of and the commencement date(s) Pollution of the Sea (Civil Liability (i) the attendance at any proceed- Rules of the Superior Courts of each act. and Compensation) Act, 1988, ings for the purpose of the prepa- (section 40, Civil Liability and and provides for related matters ration and publication of reports Courts Act, 2004) 2005 ACTS PASSED Date enacted: 30/5/2005 of such proceedings in accor- Number: SI 247/2005 Dormant Accounts (Amendment) Commencement date: Com- dance with section 40(3) of the Contents note: Amend order 70A Act, 2005 mencement order(s) to be made act, (ii) applications by a party to of the Rules of the superior courts Number: 8/2005 (per s1(4) of the act) be accompanied in court by 1986 (SI 15/1986) by the inser- Contents note: Amends the 2001 another person in accordance tion of new rules 29 (‘admission and 2003 Dormant Accounts Acts SELECTED STATUTORY with section 40(5) of the act, and to proceedings for the purposes to provide for the establishment INSTRUMENTS (iii) applications by a party for an of section 40 of the Civil Liability of the Dormant Accounts Board, District Court (funds in court) order for the disclosure to any and Courts Act, 2004’) and 30 to reform the processes by which rules 2005 third party of documents, infor- (‘disclosure of documents, infor- decisions are made about dis- Number: SI 258/2005 mation or evidence connected mation or evidence for the pur- bursements from the dormant Contents note: Amend orders 7, with or arising in the course of poses of section 40 of the Civil accounts fund, and to provide for 12 and 41 of the District Court proceedings referred to in section Liability and Courts Act, 2004’). the dissolution of the Dormant rules 1997 (SI 93/1997) to facili- 40(8) of the act Section 40 of the act deals with Accounts Fund Disbursements tate the centralised management Commencement date: 3/6/2005 proceedings held otherwise than Board and for related matters of certain categories of District in public. These new rules set out Date enacted: 25/5/2005 Court funds European Communities the procedure to be followed in Commencement date: Com- Commencement date: 3/6/2005 (compensation and assistance respect of (i) the attendance at mencement order(s) to be made to air passengers) (denied any proceedings for the purpose (per s17 of the act) District Court (intoxicating boarding, cancellation or long of the preparation and publication liquor) rules 2005 delay of flights) regulations of reports of such proceedings in Landlord and Tenant (Ground Number: SI 259/2005 2005 accordance with section 40(3) of Rents) Act, 2005 Contents note: Amend orders 71, Number: SI 274/2005 the act; (ii) applications by a party Number: 7/2005 80 and 83 of the District Court Contents note: Give full effect to to be accompanied in court by Contents note: Amends section 4 rules 1997 (SI 93/1997) regulation 261/2004 establishing another person in accordance of the Landlord and Tenant Commencement date: 3/6/2005 common rules on compensation with section 40(5) of the act; and (Ground Rents) (No 2) Act, 1978 and assistance to passengers in (iii) applications by a party for an in order to protect the interest District Court (personal the event of denied boarding and order for the disclosure to any that the state holds in property injuries) rules 2005 of cancellation or long delay of third party of documents, infor- that has been acquired for indus- Number: SI 257/2005 flights. Designate the Commission mation or evidence connected trial development purposes by Contents note: Amend the for Aviation Regulation for the pur- with or arising in the course of certain bodies by including these District Court rules 1997 (SI poses of article 16 of the regula- proceedings referred to in section bodies among the ‘state authori- 93/1997) to regulate the proce- tion for its enforcement as regards 40(8) of the act ties’ that are not bound by the dure and prescribe the forms to flights from airports situated in the Commencement date: 2/6/2005 Landlord and Tenant (Ground be used in personal injury actions state and flights from a third coun- Rents) (No 2) Act, 1978 to which part 2 of the Civil Liability try to such airports Rules of the superior courts Date enacted: 19/5/2005 and Courts Act, 2004 apply. Commencement date: 31/5/ (tenders between defendants) Commencement date: 19/5/ Insert a new order 39A (‘personal 2005 2005 2005 injuries proceedings’), and amend Number: SI 249/2005 orders 10, 12, 39, 41, 45 and 62 Rules of the superior courts (per- Contents note: Insert a new rule Sea Pollution (Hazardous Commencement date: 3/6/2005 sonal injuries) 2005 15 in order 22 of the Rules of the Substances) (Compensation) Number: SI 248/2005 superior courts 1986 (SI Act, 2005 District Court (section 40, Civil Contents note: Amend the Rules 15/1986) to permit, as between Number: 9/2005 Liability and Courts Act, 2004) of the superior courts 1986 (SI defendants, the facility of making Contents note: Gives effect to the rules 2005 15/1986) to regulate the proce- a tender of a specified amount of International convention on liability Number: SI 256/2005 dure and prescribe the forms to the total damages to which the and compensation for damage in Contents note: Amend the be used in personal injuries defendants may be liable to the connection with the carriage of haz- District Court rules 1997 (SI actions to which part 2 of the Civil plaintiff ardous and noxious substances by 93/1997) by the insertion of a Liability and Courts Act, 2004 Commencement date: 2/6/2005

35 Law Society Gazette July 2005 Briefing

Social Welfare and Pensions Social Welfare and Pensions tions 24 and 25 insofar as they ment by virtue of section Act, 2005 (section 7(1)) Act, 2005 (sections 16, 24, 25 relate to unemployment assis- 18(1)(b) or (c) of the Social (commencement) order 2005 and 26) (commencement) order tance, disability allowance, pre- Welfare Act, 1996; 6/6/2005 Number: SI 230/2005 2005 retirement allowance and farm for sections 24 and 25 insofar Contents note: Appoints 3/5/ Number: SI 182/2005 assist; 2/6/2005 for sections as they relate to supplementary 2005 as the commencement Contents note: Appoints the 24 and 25 insofar as they relate welfare allowance; 11/4/2005 date for section 7(1) of the Social following commencement dates: to old age (non-contributory) pen- for section 26 (technical amend- Welfare and Pensions Act, 2005. 1/6/2005 for section 16 sion, blind pension, widow’s or ments to the Social Welfare Section 7(1) provides for (bereavement grant); 7/4/2005 widower’s (non-contributory) (Consolidation) Act, 1993) G increased availability of the ann- for sections 24 and 25 insofar pension, one-parent family pay- ual respite care grant scheme as they relate to carer’s ment, orphan’s (non-contribu- Prepared by the and an increase in its amount allowance; 1/6/2005 for sec- tory) pension and a relevant pay- Law Society Library

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36 Law Society Gazette July 2005 Briefing Update

Selected news from Ireland’s on-line legal awareness service Compiled by Flore Bouhey for FirstLaw

COMPETITION The applicant was convicted by evidence or recollection of Peart J granted an order the Special Criminal Court of fact and a different inference under s47 for the rendition of Regulatory law membership of an unlawful had been drawn by the trial the respondent, holding that all Entitlement to sell ready-made spec- organisation contrary to section court the statutory requirements of tacles – whether minister ought to 21 of the Offences Against the 2) The balancing of conflicting s47 had been complied with. have brought in amending legisla- State Act, 1939, as amended. A rights and interests, such as The respondent had not been tion – whether legislation anti-com- garda gave evidence, in accor- the accused’s right to a fair prejudiced by the delay. The petitive – Opticians Act, 1956, s49 dance with section 3(2) of the trial with the public interest in respondent was aware that upon The case concerned the entitle- Offences Against the State ensuring that informers give his release the authorities would ment of the first plaintiff comp- (Amendment) Act, 1972, of his evidence, could only be deter- seek his re-arrest. any to sell ready-made specta- opinion that the accused had mined by the court of trial. Per curiam: there could be no cles. The second defendant set been a member of the IRA on The purpose of section 3(2) of prejudice to the state by inform- up the company with a view to the relevant date. He was cross- the 1972 act was to make the ing the prisoner in good time selling spectacles, but the examined as to that belief but statement of opinion or belief that he was to be arrested upon Opticians Act, 1956 restricted the pleaded privilege on the basis of a garda admissible as evi- his release to allow the prisoner persons permitted to supply. The that disclosing the source would dence and, while it could be to mentally prepare for the re- second plaintiff knew of the endanger the informant, and this persuasive, it was not conclu- arrest. statutory restrictions but was also plea was upheld by the trial sive. Attorney General v K, High aware that the state was moving court. A David Mooney also Quaere: whether a conviction Court, Mr Justice Michael towards a freer regime. The gave evidence against the based on the belief of a garda Peart, 11/12/2003 [FL10604] plaintiffs contended that the accused. The applicant applied pursuant to section 3(2) of the minister ought to have bought in for leave to appeal the convic- 1972 act should be upset if there amending legislation and also tion on the grounds, among were no other evidence corrobo- EMPLOYMENT that s49 was anti-competitive. other things, that David rating the belief of the garda. Smyth J refused the plaintiffs’ Mooney’s evidence was so unre- People (DPP) v Kelly, Court of Damages, injunction claim, holding that, at the mate- liable that no reasonable court Criminal Appeal, 29/4/2005 Practice and procedure – application rial time, the provisions of s49 could hold a belief beyond all [FL10671] for order prohibiting publication of were a proportional response to reasonable doubt based on his report – whether serious issue to be the perceived public health argu- evidence and that he had not Delay, extradition tried – adequacy of damages – bal- ment. been given a trial in due course Delay in endorsement and execution ance of convenience – whether Easy Readers Limited v Bord na of law insofar as there was no of warrants – respondent re-arrest- behaviour of applicants disentitled Radharcmhastori, High Court, investigation by the court as to ed when released from prison – them to equitable relief Mr Justice Smyth, 15/10/2003 whether the claim of privilege Extradition Act, 1965, s47 The minister directed the [FL10578] was reasonable. The applicant sought an order labour inspectorate to investi- The Court of Criminal pursuant to s47 of the gate allegations that had been Appeal refused leave to appeal, Extradition Act, 1965, as amend- made against the applicant con- CRIMINAL holding that: ed, for the rendition of the struction companies relating to 1) The principles to be applied respondent to the Metropolitan their treatment of employees. Appeal, evidence by an appellate court in rela- Police in London on foot of The two companies were given Belief of garda corroborated by fur- tion to decisions of fact by the three warrants. The respondent leave to apply for judicial review ther testimony – source of belief – Special Criminal Court were submitted, among other things, seeking prohibition against pub- whether obligation to reveal source that an appellate court did not that the extradition proceedings lication of the report. They of belief – whether non-disclosure of enjoy the opportunity of see- had not been implemented expe- sought interlocutory injunc- source of belief renders conviction ing and hearing the witnesses ditiously and that the delay in tions. unsafe as being unfair – Offences as did the trial court and that endorsing and executing the Kelly J granted a limited form Against the State (Amendment) if findings of fact made by the warrants was unconscionable of injunction, holding that no Act, 1972, section 3(2) – witness – trial court were supported by and intolerable. The respondent obstruction or obstacle should credibility – whether evidence reli- credible evidence, the appel- had been serving a term of be placed in the way of five state able – whether assessment of evi- late court was bound by those imprisonment and, in accor- authorities being appraised of dence by trial court should be upset – findings; an appellate court dance with the established policy the contents of the report. principles to be applied by appellate should be slow to substitute of the attorney general, he was However, the publication of the court in relation to decisions of fact its own inference of fact, not arrested until the termina- report to the public at large by trial judge where such depended on oral tion of his prison sentence. should be restrained until the

37 Law Society Gazette July 2005 Briefing trial of the action. Although of 1997 and 1998 together, or The applicant submitted that, at tended, among other things, there were disquieting elements as forming part of a continu- specific times, the premises was that a significant amount of the concerning the behaviour of the um. The respondent and trial used as a nightclub and that was material had been obtained by applicants, they had not been judge erred in determining in breach of condition no 4 of the use of hidden cameras, in guilty of such wrongdoing or that the information con- the planning permission. breach of their right to privacy, non-disclosure as to disentitle tained in the reports could Quirke J held that: and was also unlawful as having them to relief. give rise to highly subjective 1) The applicant established on been obtained by trespass. Gama Endustri Tesisleri comparisons being drawn the balance of probabilities Clarke J refused the applica- Imalat Montaj AS v Minister between different schools, that the use by the respon- tions for interlocutory injunc- for Enterprise, Trade and which would not breach s53 dent of the basement area of tions restraining the broadcast Employment, High Court, Mr of the 1998 act, and in find- the premises was an unautho- but granted an order restraining Justice Kelly, 22/4/2005 ing on that ground that rised use within the meaning RTÉ from engaging in any fur- [FL10745] access to the reports was not of s2 of the act of 2000 ther trespass and held that it was exempt under s32(1)(a) of the 2) The applicant failed to estab- not clear that the plaintiff in the 1997 act. Accordingly, the lish on the evidence that first proceedings would ulti- FREEDOM OF appeal under s53 was allowed there was an unauthorised mately succeed in her defama- INFORMATION 2) The appellant failed to use of any part of the premis- tion action. It was not clear that adduce evidence of prejudice es other than the basement. a reasonable viewing of the pro- Education or that a significant adverse The applicant failed to define gramme would cause a viewer to Access to documents – Education effect could result from the the word ‘nightclub’ and did conclude that the plaintiff in the Act, 1998 – Freedom of granting of access to the not adduce any evidence to first proceedings was at fault. Information Act, 1997 – whether reports and, further, the enable the court decide what While the plaintiffs in the sec- the commissioner and trial judge reports did not contain very use ‘as a nightclub or similar ond proceedings had a right to erred in their interpretation of s53 confidential information. function type of premises’ privacy, this right had to bal- of the 1998 act – whether s32 of Accordingly, the grounds of comprised. anced against competing rights. the 1997 act could or should inform appeal relating to ss21 and 26 Dublin City Council v Liffey RTÉ had shown that there were the interpretation of s53 of the of the 1997 act should be dis- Beat Limited, High Court, Mr real, significant and weighty 1998 act missed. Justice Quirke, 10/2/2005 public interest issues involved. The appellant appealed against Sheedy v The Information [FL10639] Cogley v RTÉ, Aherne v RTÉ, a decision of the High Court Commissioner, Supreme High Court, Mr Justice refusing to overturn a decision Court, 30/5/2005 [FL10697] Clarke, 8/6/2005 [FL10672] of the respondent granting PRIVACY access to the second-named notice party (The Irish Times) to PLANNING AND Defamation, trespass REFUGEE AND ASYLUM redacted versions of reports, DEVELOPMENT Interlocutory relief – interim relief including a report prepared fol- – test for grant of interlocutory Certiorari, human rights lowing an inspection of the pri- Planning permission injunction – balancing competing Immigration – human rights – mary school where the appel- Unauthorised use – whether there rights – whether real, significant marriage of Irish national and lant was principal. The depart- was a material change in the per- and weighty public interest issues Romanian national after deporta- ment initially refused to grant mitted use of the premises as a pub- involved – Broadcasting Author- tion – application sought to revoke such access on the basis that the lic entertainment area – ity (Amendment) Act, 1976, s3 minister’s deportation order – D- disclosure of the reports would Development Act, 2000 The plaintiff in the first pro- reside visa enable school league tables to The applicant applied pursuant ceedings was a director of nurs- A Romanian national was be produced in contravention of to s160 of the act of 2000 for an ing at the Leas Cross Nursing deported from Ireland and s53 of the 1998 act. The appeal order restraining the respon- Home. The plaintiffs in the sec- three months later married an was based on the grounds that dent from the unauthorised use ond proceedings were the own- Irish girl in Romania. He then the trial judge misdirected him- as a nightclub of premises ers and occupiers of Leas Cross sought an order of certiorari to self in law and in fact in his known as ‘Spirit’, an order Nursing Home. RTÉ intended revoke the deportation order. interpretation of and/or his requiring the respondent to to broadcast a programme on Quirke J refused the applica- application of s53 of the 1998 cease the allegedly unauthorised the subject of the standard of tion. The applicant had sought act and erred in law and in fact use of the basement level of nursing home care generally and had been refused asylum in in his interpretation of and/or Spirit as a bar, and an order and the management and oper- other jurisdictions before com- his application of ss32(1)(a), 21 requiring that it be restored to ation of the Leas Cross Nursing ing to Ireland. His application and 26 of the 1997 act. the use permitted by the plan- Home in particular. Both plain- in Ireland had been processed in The Supreme Court (Kearns, ning permission as a museum. tiffs sought interlocutory orders the normal way and was denied. Denham JJ, Fennelly J dissent- The respondent was permitted to restrain the broadcast of the Having been duly informed of ing) allowed the appeal, holding to use both the ground floor programme and the applica- this decision, he was required to that: and the first floors as a public tions were heard together. The present himself at a garda sta- 1) Because of the use of the entertainment area (music) with plaintiff in first proceedings tion but did not show up and word ‘notwithstanding’ at the emphasis on seated entertain- based her claim squarely on subsequently he was arrested beginning of s53, it was not ment where food was served, defamation. The plaintiffs in and then deported. Subsequent possible to construe the acts without any restriction in time. the second proceedings con- to his marriage to the Irish

38 Law Society Gazette July 2005 Briefing national, he sought a visa to to revoke a deportation order and balancing the competing reserved to the High Court any return to Ireland. It was sus- should be subject to review on the interests and factors in order question of damages flowing pected by the authorities that it basis of the applicant’s family status to satisfy that the measure from the invalidity in the was a marriage of convenience. The applicants sought leave to was necessary in a democrat- appointing decision. The High The Supreme Court (Fennell apply by way of judicial review ic society and therefore pro- Court (Kearns J) held that the J, Hardiman, Geoghegan, for an order of certiorari quash- portionate to the objective to applicant had fallen short on the McCracken and Kearns JJ con- ing the decision of the respon- be achieved balance of probabilities of curring) dismissed the appeal dent refusing to revoke a depor- 2) It was at least arguable that establishing a case of misfea- and affirmed the order of tation order made in respect of the course of dealing that had sance in public office. Quirke J, holding that: the first-named applicant. The taken place between the first The Supreme Court 1) The minister gave due applicants submitted that the named applicant and the (Denham, McGuinness, weight to all relevant infor- decision of the respondent to Garda National Immigration Hardiman, Geoghegan and mation before him refuse to revoke the deportation Bureau was such as to give Fennelly JJ) dismissed the 2) It had not been shown that order once he was notified of rise to a legitimate expecta- appeal, holding that the High the minister had acted in pur- the first-named applicant’s mar- tion that she would not sud- Court had held that there was suit of a fixed or inflexible riage to the second-named denly and without warning no evidence of bad faith on the policy and that his decision applicant, who had lawfully be arrested and deported. part of the Law Society that was unreasonable or dispro- resided and worked in the state Spartariu and Spartariu v The would support an allegation of portionate for a number of years, breached Minister for Justice, Equality deliberate or reckless behaviour. 3) Given the particular facts of their rights as provided for in and Law Reform High Court, These primary findings of fact this case, the minister’s deci- the constitution and the Mr Justice Peart, 7/4/2005 could not be interfered with. sion fell well within the mar- European convention on human [FL10601] Insofar as the High Court had gin of appreciation allowed rights to reside in this state as a drawn inferences, it would seem to member states by the family unit. Furthermore, the that they were legitimate infer- European convention applicants submitted that the TORT ences. 4) This case does not merit first-named applicant had a Kennedy v Law Society of reconsideration of the stan- legitimate expectation that she Damages Ireland, Supreme Court, dard of unreasonableness would not be deported pending Misfeasance in public office – sub- 21/4/2005 [FL10569] G normally required by the further medical review. jective recklessness – whether Law well-established jurispru- Peart J granted leave to seek Society acted in bad faith – findings The information contained here dence of the court. judicial review, holding that: of fact in High Court is taken from FirstLaw’s Legal Cirpaci v Minister for Justice, 1) It was at least arguable that This appeal had a long history Current Awareness Service, Equality and Law Reform, the decision of the respon- that included two substantive published every day on the internet Supreme Court, 20/6/2005 dent infringed a right or judgments of the Supreme at www.firstlaw.ie. For more [FL10738] rights protected by the con- Court. The court had held that information, contact bartdaly@ stitution and/or convention the Law Society had appointed firstlaw.ie or FirstLaw, Merchant’s Deportation, judicial review relating to the family, and the an accountant for two purposes, Court, Merchant’s Quay, Dublin Leave application – whether the respondent failed to carry out one of which was ultra vires and 8, tel: 01 679 0370, fax: 01 679 decision of the respondent refusing the exercise of considering the other intra vires. The court 0057.

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New Canon Law Options for 2005 Higher Diploma in Theological Studies with specialisation in Canon Law (Two-year option) STAFF: DR MICHAEL MULLANEY, DR AIDAN MCGRATH OFM, DR FINTAN GAVIN COURSE REQUIREMENTS This course will be a two-year taught programme with attendance one evening a week (3 hours). Each compulsory module will be assessed by attendance and a written assignment of 5000 words (approx). In addition, the candidate is required to submit a dissertation on a topic chosen by the student, with the Director's approval. ADMISSION REQUIREMENTS The minimum entry requirement for this course is a primary degree in Law. Master's Degree in Theology (Canon Law) (Three-year option) COURSE REQUIREMENTS Course requirements are as above, however, candidates must success- fully complete a one year evening programme (Higher Diploma in Theological Studies) prior to the commencement of the Higher Diploma in Theological Studies (Canon Law). Please note that Graduates who already hold the minimum of a second class honours degree in Theology (2:2), may apply directly for the two-year Master's Degree in Theology with specialisation in Canon Law.

For further details, please contact the Theology Admissions Office, St Patrick's College, Maynooth, Co. Kildare (01) 708 4772 / (01) 708 3600. E-mail: [email protected] Briefing Eurlegal News from the EU and International Affairs Committee Edited by TP Kennedy, director of education, Law Society of Ireland The Europeanisation of Irish family law

rish family law is not an area ate measure whereby a court Ireadily associated with the decree is given enforceable European Community. Con- quality) in civil and commercial sequently, council regulation matters adopted by the Justice 1347/2000 (known as Brussels and Home Affairs Council in II) came as something of a November 2000 are to be found shock. It was an attempt to leg- in Brussels I and Brussels II. islate for the fact that six mil- What has been achieved? lion EU citizens live in another The repealed Brussels II regula- member state. tion on jurisdiction, recogni- According to article 65 of the tion and enforcement of judg- EC treaty, the European ments in matrimonial matters Community possesses legal and in matters of parental competence for international responsibility for children of civil procedure, including fam- both spouses came into force on ily matters. The European 1 March 2001. It sought to har- Commission is bound by the monise the private internation- limits of article 65 and can only al law with regard to jurisdic- take measures to harmonise tion, recognition and enforce- procedural family law. It cannot ment of judgments on divorce, take measures to harmonise separation and marriage annul- substantive family law. That ment and on parental responsi- said, this distinction is not easy European identity and an inte- Charter of fundamental rights of bility if issued in the context of to either make or apply. The grated European legal space. 7 December 2000. Significant- matrimonial proceedings. It did now repealed Brussels II regula- That said, there is increasing ly, at the Laeken European not deal with applicable law. tion on jurisdiction, recognition tension between the desire to Council meeting of 14-15 The High Court recently ruled and enforcement of judgments retain family law under the December 2001, the harmoni- on the implications of this reg- in matrimonial matters and in internal affairs of the member sation of family law was specifi- ulation in the case of YNR v matters of parental responsibili- states (justified by the EU prin- cally mentioned in the recom- MN (unreported, 3 June 2005, ty for children of both spouses ciple of subsidiarity) and the mendation to use all efforts to High Court, O’Higgins J). The was the first attempt by the on-going need for more uni- overcome the problems arising case concerned a French couple European Community to enter form rules and regulations. from differences between legal who married in France in 1978 the family law area. The European Court of systems. and moved to Ireland in 1988. The increasing free move- Human Rights has expanded on The Treaty of Amsterdam, as The marriage broke down in ment of persons has resulted in European family law in a num- interpreted by the institutions 2002. Shortly thereafter, in an almost identical increase of ber of its decisions. At a of the European Community, November 2002, the husband cross-border family relations. European Union level, the EC has facilitated the communitari- initiated divorce proceedings. The accepted instrument to treaty guarantees freedom of sation of family law. In the 1997 By this time the wife had address legal issues arising from movement for all workers. The treaty, the EU member states returned to France while the such relations is the use of pri- European Court of Justice has held that economic and politi- husband remained in Ireland. vate international law. Private given major impetus to a cal integration required, among In December 2002, the wife international law, however, is European family law by other things, the harmonisation instituted proceedings in but an interim solution. While attributing implications of a of both the law of property and Ireland. Further proceedings private international law family nature to the freedom of procedural law. Family law is were brought in October 2003 enables a certain degree of uni- movement. One has yet to identified in the action plan for and January 2004. The wife formity to be achieved, the dif- notice that, essentially, the the implementation of the challenged, among other ferences between the substan- European Union has no com- Treaty of Amsterdam. things, the constitutionality of tive laws of the member states petence for the unification of Recent EU legislation has the Brussels II regulation and are still maintained. family law. That said, the union been drafted and adopted in the contended that only the Irish The absence of harmonised seems to have abandoned its field of divorce and parental court could reorder assets with- family law creates a barrier to restraint. It expressly acknowl- responsibility. Steps for the in the state. the free movement of persons edged the importance of the progressive abolition of the exe- O’Higgins J declined the and the realisation of a truly family with the adoption of the quatur (meaning an intermedi- wife’s application that the case

41 Law Society Gazette July 2005 21 st Century business in 18 th Century elegance

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It extends the guaranteed irrespective of the fact ed in the legislative package. arose out of the ‘yes’ vote in the scope to all judgments on that some member states have or do Amsterdam treaty referendum. parental responsibility. It takes not have legal rules regarding Divorce O’Higgins J concluded that the over the rules on recognition same-sex couples. That is an obvious The European Commission High Court had no jurisdiction and enforcement from Brussels II principle’. launched a green paper on appli- in the matter. The judge noted and abolishes exequatur for two Given the fact that the Brussels cable law and jurisdiction in that, under the regulation, the limited categories of judgments II bis regulation has made it nec- divorce matters on 14 March court to which the application is (judgments on cross-border essary to consider the harmoni- 2005. The green paper outlines first brought must hear the case. access rights and judgments sation of national divorce law, the practical difficulties for the As the French court was the requiring the return of a child further European legislation will increasing number of ‘interna- court to which this case was first after an abduction). It is arguable render harmonisation efforts in tional couples’ who divorce each brought, it had the right to hear that Brussels II bis implies a cer- other areas of family law year within the European the case and determine the tain harmonisation of substan- unavoidable. Union. It addresses many of the issues: ‘It would be unwarranted tive family law and is not strictly difficulties caused by the imple- and irresponsible of this court to act limited to private international Maintenance mentation of the repealed on the assumption that the French law. In April 2004, the European Brussels II regulation and the courts will act other than in any The harmonisation of family Commission published a green revised Brussels II. In particular, way permitted by the relevant legis- law in Europe has begun and is paper on the questions arising in it deals with the question of lation, and it is clear that the Irish seen as the ultimate step in the the recovery of maintenance applicable law, for which there courts have no role in the supervi- realisation of free movement for claims. The green paper was part are no community rules at pres- sion of the French courts in doing all Europeans. The argument of a public consultation on this ent. The revised Brussels II does their legitimate business. It is clear recently advanced in this juris- difficult issue. A ‘legislative not cover conflict-of-law rules. that the French courts have juris- diction that there is no need for package’ will soon emerge that The green paper criticises the diction in this case and that it is harmonisation is flawed. Family will reflect the results of the con- current ‘lack of legal certainty appropriate for this court to declare ties increasingly stretch across sultation process. One of the key and flexibility’ and states that … that it has no jurisdiction in this one or more jurisdictions. recommendations is likely to be ‘the current situation may also matter’. Millions of migrants, including the removal of the exequatur lead to results that do not corre- The Brussels I regulation on workers and their families, mov- procedure. The package is likely spond to the legitimate expecta- jurisdiction, recognition and ing within the EU are confront- to include proposals permitting tions of citizens’. It deals with enforcement of judgments in ed with different family laws. A ‘precise identification of a the problems created by the civil and commercial matters different family law may affect debtor’s assets in the territory of alternative grounds for the juris- came into force on 1 March free movement within the EU. the member states’, so that dictional rules relating to 2002. As with the Brussels conven- In this regard, France Frattini, mutual recognition can occur in divorce. The paper provides a tion, the Brussels I regulation also the EU commissioner for jus- an environment that enhances number of examples, such as a

43 Law Society Gazette July 2005 Briefing

Finnish-Swedish couple living in injury action. In case C-281/02, of the Brussels convention is pre- on a set of uniform connecting Ireland or an Italian couple liv- Andrew Owusu v NB Jackson, cisely to lay down common rules to factors’. It also invites submis- ing in Germany, to illustrate the trading as ‘Villa Holidays Bal-Inn the exclusion of derogating national sions on whether spouses should need for adopting European Villas’ and Others, the ECJ stat- rules. be allowed to a limited extent to rules on selecting the competent ed: ‘The forum non conveniens ‘The Brussels convention pre- choose the law applicable to law for settling divorce cases. It doctrine, which allows the court cludes a court of a contracting state their divorce, legal separation or acknowledges that the rule on lis seised a wide discretion as regards from declining the jurisdiction con- marriage annulment. pendens (the ‘first come, first the question whether a foreign court ferred on it … on the ground that a Family law in Ireland is still in served’ principle) may induce would be a more appropriate forum court of a non-contracting state a state of rapid change. the parties to a transnational for the trial of an action, is liable to would be a more appropriate forum International relationships do marital breakdown into a race to undermine the predictability of the for the trial of the action, even if the not know frontiers. This can be see who can get to court first. rules of jurisdiction laid down by the jurisdiction of no other contracting seen from the growing number This makes speed of the essence Brussels convention … and conse- state is in issue or the proceedings of international instruments in ‘international’ divorces. The quently [is liable] to undermine the have no connecting factors to any governing cross-border issues in green paper states that ‘a possi- principle of legal certainty, which is other contracting state’. family law. Recent and impend- ble remedy could be to intro- the basis of the convention. Unfortunately, in the instant ing EU legislation in the private duce a possibility to transfer a ‘Allowing forum non conve- case, the ECJ refused to consid- international law area can only divorce case, in exceptional cir- niens in the context of the Brussels er whether the application of therefore be regarded as a first cumstances, to a court of anoth- convention would be likely to affect forum non conveniens was ruled step, a step that brings the har- er member state’. the uniform application of the rules out in all circumstances. monisation of substantive family Application of the forum non of jurisdiction contained therein, The green paper invites inter- law closer. G conveniens doctrine has, however, insofar as that doctrine is recognised ested parties to indicate whether recently been subject to criticism only in a limited number of con- they support harmonisation of Geoffrey Shannon is the Law in a Brussels convention personal tracting states, whereas the objective the conflict-of-law rules ‘based Society’s deputy director of education. Recent developments in European law FREE MOVEMENT OF her to a clinic in Zurich. This was member state of stay are best nor subject the medical findings PERSONS the only clinic in which the opera- placed to assess the treatment and decisions to its approval. The tion she needed could be per- needed by the patient. The institu- cost of treatment is borne by the Case C-145/03, Heirs of Annette formed with a real chance of suc- tion of the member state of affili- institution of the member state of Keller v Instituto Nacional de la cess. She paid the costs of the ation places its confidence in the stay and the institution of the Seguridad Social (INSS) and treatment in Zurich herself and institution of the host member member state of affiliation is sub- Instituto Nacional de Gestión then requested Insalud to reim- state and the doctors authorised sequently to reimburse the institu- Sanitaria (Ingesa), formerly burse those costs. Her request by it during the period of validity of tion of the member state of stay. Instituto Nacional de Salud was refused and she then com- the form. Consequently, the insti- In this case, it is for the Spanish (Insalud), 12 April 2005. Ms menced court proceedings. The tution of the member state of affil- social security institution to reim- Keller was a German national, res- national court made a reference iation is bound by the findings burse the cost of treatment direct- ident in Spain. She asked the rel- to the ECJ on the interpretation of relating to the need for urgent ly to the heirs of Ms Keller. evant Spanish institution (Insalud) regulation 1408/71 on the appli- vital treatment made by the doc- for a form E111 for a period of cation of social security schemes tors authorised by the institution Case C-209/03, The Queen (on one month in order to travel to to migrant workers. The ECJ indi- of the member state of stay. It is the application of Dany Bidar) v Germany. This form gives an cated that one of the objectives of also bound by the decision of London Borough of Ealing and insured person whose health the 1971 regulation is to facilitate those doctors to transfer the Secretary of State for Education necessitates immediate treat- the free movement of persons patient to another state to be and Skills, 15 March 2005. In ment during a stay in another covered by social insurance who given the urgent treatment that England and Wales, assistance member state the right to benefits need medical treatment during a the doctors of the member state with maintenance costs for stu- in kind in that member state. stay in another member state, or of stay are unable to provide. It is dents is provided by means of stu- During her stay in Germany, she who have been authorised to of no importance that the state to dent loans from the state. was diagnosed as having a malig- receive treatment in another which the doctors have decided to Students begin to repay the loans nant tumour liable to cause death member state. Forms E111 and transfer the patient is not a mem- once they begin earning more at any time. She asked Insalud to E112 are intended to assure the ber of the European Union. The than stg£10,000. The interest issue her a form E112 to enable institution of the member state of institution of the member state of rates are linked to inflation. her to continue receiving treat- stay and the doctors authorised affiliation cannot require the per- Nationals of other member states ment in Germany. This form gives by it that the patients is entitled to son concerned to return to the are entitled to receive this loan if an insured person authorisation receive in that member state member state of residence to they are ‘settled’ in the United to go to another member state to treatment whose costs will be undergo a medical examination Kingdom and have been resident receive appropriate medical treat- borne by the member state of there, nor can it have him exam- there for the three years prior to ment. German doctors transferred affiliation. The doctors in the ined in the member state of stay, commencing their course. Under

44 Law Society Gazette July 2005 Briefing

English legislation, it is not possi- his secondary education, without precludes any possibility of a distinguish the goods or services ble to become ‘settled’ if one it being objected that he does not national of another member state from others with another origin. A resides in the United Kingdom have sufficient resources or sick- obtaining settled status as a stu- trademark owner may not prohib- solely to study. Bidar is a French ness insurance, enjoys a right of dent. It is therefore incompatible it a third party from using the national who moved to the UK in residence on the basis of article with EC law. mark in trade where it is neces- 1998 with his mother, who was to 18 and directive 90/364 on rights sary to indicate the intended pur- undergo medical treatment there. of residence. In the past, the ECJ pose of a product or service, He lived in the UK with his grand- had held that assistance given to INTELLECTUAL such as accessories or spare mother and completed his last students for maintenance fell out- PROPERTY parts, provided that such use is thee years of secondary educa- side the scope of the treaty. made in accordance with honest tion there. In 2001, he enrolled However, the Treaty on European Case C-228/03, The Gillette practices in industrial or commer- with University College London Union has introduced citizenship Company and Gillette Group cial matters. The court examined and applied to the London of the union and added a chapter Finland Oy v LA-Laboratories Ltd this condition of ‘honest use’. It Borough of Ealing for financial devoted to education and voca- Oy, 17 March 2005. Gillette reg- held this to be the expression of assistance. He was granted assis- tional training. In view of these istered its trademarks ‘Gillette’ a duty to act fairly in relation to tance with tuition fees but he was developments, the ECJ held that and ‘Sensor’ in Finland. It mar- the legitimate interests of the refused a maintenance loan on assistance given to students who kets various razors, including trademark owner. This condition the basis that he was not ‘settled’ are lawfully resident in a member those composed of a handle and is not fulfilled where the trade- in the United Kingdom. Bidar chal- state, whether in the form of a replaceable blades. The respon- mark is used in such a manner as lenged the decision, claiming that subsidised loan or grant, intended dent, LA-Laboratories, also mar- to give the impression that there the requirement to be settled was to cover their maintenance costs, kets razors composed of a han- is a commercial connection discrimination on grounds of falls within the scope of applica- dle and replaceable blade in between the third party and the nationality, prohibited by the EC tion of the treaty. The English leg- Finland. It marketed blades under trademark owner. Likewise, it is treaty. The English High Court islative requirements place at a the trademark ‘Parason Flexor’, not fulfilled where use of the asked the ECJ whether assistance disadvantage nationals of other attaching to their labels a sticker mark affects its value by taking with maintenance costs remained member states. Such a difference with the words, ‘All Parason unfair advantage of its distinctive outside the scope of the treaty. in treatment can only be justified Flexor and Gillette Sensor han- character or repute, or use of the The ECJ held that a citizen of the if it is based on objective consid- dles are compatible with this mark entails its discrediting or EU lawfully resident in another erations independent of national- blade’. Gillette argued that the denigration, or where the third member state can rely on the pro- ity and is proportionate to the aim conduct of LA-Laboratories party presents its product as an hibition of discrimination on that is pursued. It is permissible infringed its registered trade- imitation or replica of the product grounds of nationality in all situa- for a member state to ensure that marks, Gillette and Sensor. It bearing the trademark of which it tions that fall within the scope of the grant of assistance to cover argued that a connection had is not the owner. The fact that a EC law. There is nothing in the maintenance for students from been created in the minds of con- third party uses a trademark of treaty to suggest that students other member states does not sumers between its products and which it is not the owner in order who are citizens of the EU lose become an unreasonable burden. those of LA-Laboratories or the to indicate the intended purpose the rights that the treaty confers It is thus legitimate for a host impression had been given that of its product does not necessar- on citizens when they move to state to grant such assistance LA-Laboratories was authorised ily mean that it is presenting that another member state to study only to students who have demon- to use the Gillette and Sensor product as being of the same there. A national who goes to strated a certain degree of inte- marks. The Finnish Supreme quality as, or having equivalent another member state and pur- gration into the society of that Court made a reference to the properties to, those of the prod- sues secondary education there state. The English requirements ECJ. The ECJ pointed out that the uct bearing the trademark. The exercises the freedom to move, of residence for a certain num- essential function of a trademark national court must verify guaranteed by article 18. Where bers of years could be used to is to guarantee the identity of ori- whether the presentation is in the national of a member state establish the existence of a cer- gin of the marked goods or serv- accordance with honest practices lives in another member state tain degree of integration. ices to the consumer. The trade- in industrial and commercial mat- where he pursues and completes However, the English legislation mark enables the consumer to ters. G

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45 Law Society Gazette July 2005 People and places

Euro star Not running on empty Law Society webmaster Petrina This year’s Calcutta Run took place on 28 May and up to 1,500 people ran or walked the 10km route around Lonergan (left), pictured with the Phoenix Park. It was followed by a monster barbecue in Blackhall Place (no monsters were harmed) in bril- deputy director general Mary liant sunshine, with raffles, the Guinness Jazz Band, a DJ, and more. The event is on target to beat last year’s Keane, was recently conferred fund-raising record of 230k, which will be shared between Goal’s orphanage in Calcutta and Fr Peter with a diploma in applied McVerry’s projects for homeless boys in Dublin. Put it in your diary for May 2006 European law

Sachs in the city Renowned South African Constitutional Court judge, Mr Justice Albie Sachs, delivered the Law Society’s inaugural human rights lecture, entitled The justiciability of socio-economic rights, at Blackhall Place on 23 June. Pictured (from left) are Law Society Human Rights Committee Euro millions vice-chairman Michael Farrell, committee secretary Alma Clissmann, Pictured with the recent recipients of the diploma in applied EU law are president Owen Binchy, Mr Justice Sachs, Vanessa September and Law Society Education Committee chairman Stuart Gilhooly and Peter South African ambassador Melanie Verwoerd Doyle, head of the EU Commission’s representation in Ireland

The next generation? Pictured at the presentation of Ballymun Community Law Centre’s annu- Ars gratia artis al Kathleen Maher/Sean O’Cionnaith memorial legal essay competition Law Society president Owen Binchy and Southern Law Association presi- are prize winners Denise Emerson, James Walsh and Mary Mockler, dent Jerome O’Sullivan with Claire Hurley and Sandra Brookes, winners alongside attorney general Rory Brady, the law centre’s Frank Murphy of the Southern Law Association Cork 2005 student art competition and Claire O’Regan of Ferrys

46 Law Society Gazette July 2005 People and places

Skibereen (legal) eagles It wasn’t a bridge too far when Law Society president Owen Binchy and director general Ken Murphy paid a visit to the West Cork Bar Association in May. Pictured by the now disused railway bridge over the river Ilen at Skibereen are (seated, from left) Ger Corcoran, association secretary Colette McCarthy, Owen Binchy, association president Helen Hoare, Ken Murphy, Roni Collins and Fergus Applebe; (standing, from left) Richard Barrett, Maura O’Donovan, Virgil Horgan, Susan Fleming, Padraig Sheehan, John McCarthy, Tony Greenway, Maeve O’Driscoll, Ellen O’Mahony, Jim Brooks, Paul O’Sullivan, Anthony Coomey, Eamonn Fleming, Kay Lynch, Dan Sheehan, Kevin O’Donovan, Patrick O’Donoghue, Conor Murray, Therese Thornton, Mary Jo Crowley, Conrad Murphy, Cindy McCarthy and Plunkett Taaffe

Home decorating Former Law Society junior vice-president John Fish received a high honour from the Austrian government in January. John was decorated for services to Austria in his capacity as former president of the Council of Bars and Law Societies of Europe Shirt sleeves for the SYS It was jackets off on a warm June evening when the society hosted a dinner for recent former chairs of the Society of Young Solicitors. The SYS has been organising two confer- ences a year for young and newly-qualified solicitors, with a unique blend of educational and social activities, for almost 40 years. Pictured are (front, from left) Richard Willis (2004/05), Nora Lillis (2003/04), president Owen Binchy, Ken Murphy (director general and SYS chair for 1986/87), Judge Katherine Delahunt (1989/90), Fidelma McManus (1999/00), Paul Murray (2002/03); (rear, from left) Owen O’Sullivan (1992/93), senior vice-president Michael Irvine, William Aylmer (2000/01), Declan O’Sullivan (1997/98) and Gavin Buckley (1994/95) SOLICITORS’ HELPLINE Until the wee small hours Bravely struggling on, following the departure of the The Solicitors’ Helpline is available to assist every member of the hardest task-master in journalism, are deputy director general Mary Keane, Gazette secretary Catherine profession with any problem, whether personal or professional Kearney, deputy editor Garrett O’Boyle and designer Nuala Redmond. Though for ‘task’, we mean ‘beer’, and for ‘master’ we mean ‘lets us drink beer’. As to 01 284 8484 what we mean by ‘journalism’, we can only say THE SERVICE IS COMPLETELY CONFIDENTIAL AND TOTALLY INDEPENDENT OF THE LAW SOCIETY ‘superb’. Let’s not mention ‘hardest’

47 Law Society Gazette July 2005 People and places Meeting of the Law Society Council, Cork Courthouse, 27 May 2005

Sermon on the mount President Owen Binchy addresses the Cork faithful

Knock on wood Deputy director general Mary Keane, director general Ken Murphy, president Owen Binchy, Stairway to heaven and newly-appointed District Court judge Brian Sheridan in the newly-refurbished Washington Council members Sinéad Behan, Michelle Ní Longain Street courthouse and Michele O’Boyle www.lawsociety.ie Have you accessed the Law Society website yet?

48 Law Society Gazette July 2005 Professional information

LOST LAND of Cork and county of Cork; Co CERTIFICATES Cork LawSociety Regd owner: Anthony J McCarthy; Gazette Registration of Title Act, 1964 folio: 99477F; lands: plots of ground An application has been received from being part of the townland of Grange PROFESSIONAL NOTICE RATES the registered owners mentioned in the in the barony of Muskerry East and schedule hereto for the issue of a land county of Cork; Co Cork Notice rates in the Professional information section are as follows: certificate as stated to have been lost or Regd owner: Catherine Nagle; folio: • Lost land certificates – €121 (incl VAT at 21%) inadvertently destroyed. A new certifi- 2030F; lands: plots of ground being • Wills – €121 (incl VAT at 21%) cate will be issued unless notification is part of the townland of Cullomane • Lost title deeds – €121 (incl VAT at 21%) received in the registry within 28 days West in the barony of Carbery West • Employment/miscellaneous – €121 (incl VAT at 21%) from the date of publication of this (west division) and county of Cork; € notice that the original certificate is in Co Cork HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – 30 EXTRA existence and in the custody of some Regd owner: John O’Mahony; folio: All notices must be paid for prior to publication. Deadline for Aug/Sept Gazette:19 person other than the registered owner. 50951; lands: plots of ground being August 2005. For further information, contact Catherine Kearney or Valerie Farrell Any such notification should state the part of the townland of Kilnacranagh on tel: 01 672 4828 (fax: 01 672 4877) grounds on which the certificate is West in the barony of Carbery East being held. (west division) and county of Cork; Regd owner: William Collins and Anne Regd owner: Nora O’Regan; folio: (Register of Titles), Central Office, Land Co Cork Collins; folio: 2582F; lands: townland 5573; lands: townland of Gortgarralt Registry, Chancery Street, Dublin Regd owner: Thomas Burke, of Caltragh (ED Killower) and barony and barony of Smallcounty; Co (Published 8 July 2005) Mullanbuoys, Inver, Co Donegal; of Clare; area: 0.1340 hectares; Co Limerick folio: 23740; lands: Cranny Lower; Galway Regd owner: Jeremiah O’Shea; folio: Regd owner: Arthur Kennedy area: 0.6576; Co Donegal Regd owner: John Diviney; folio: 8697F; 4347; lands: townland of Kilbreedy (deceased); folio: 10488F; lands: Regd owner: Connell Molloy, 22 lands: situate in the townland of West and barony of Coshlea; Co Hacketstown Upper and barony of Seaview Avenue, Clontarf, Dublin; Gurraun Lower and barony of Limerick Rathvilly; Co Carlow folio: 18720; lands: Gortnamucklagh; Dunkellin and county of Galway; area: Regd owner: Dympna Ward, Regd owner: Sean Quinn Group area: 1.5580 hectares; Co Donegal 0.375 acres; Co Galway Ballinalee, Co Longford; folio: Limited; folio: 12702F; lands: Regd owner: Eamon Desmond Logue Regd owner: Finnoe Company Limited; 11724; lands: Ballinalee or Mucklagh and Aughrim; area: 29.168 and Mary Frances Logue, folio: 37722F; lands: townland of Saintjohnstown; area: 1.1458; Co hectares; Co Cavan Urbalshinney, Milford, Co Donegal; Carnmore East and barony of Longford Regd owner: Alan Kershaw and folio: 29043F; lands: Urbanshinny; Lisheenavalla; area: 1.275 hectares; Regd owner: James Conroy, Philomena Kathleen Kershaw; folio: 24518F; area: 0.2230 hectares; Co Donegal Co Galway Conroy and Mary Moran, 5 Saint lands: townland of Dough and Regd owner: Kriswick Limited; folio: Regd owner: Kathleen Lee; folio: 23758; Mary’s Terrace, Longford; folio: barony of Moyarta; area: 0.023 DN85026F; lands: property situate in lands: townland of Rosroe (part) and 9677; lands: Deanscurragh; area: hectares; Co Clare the townland of Friarsland and barony of Ballynahinch; area: 63 acres, 0.1593 hectares; Co Longford Regd owner: Michael Hillery, Sean barony of Rathdown; Co Dublin 1 rood, 36 perches; Co Galway Regd owner: Rose Christina Leahy, Treacy, Seamus Cleary and Gerry Regd owner: Smurfit Ireland Limited; Regd owner: Kevin Murphy; folio: Ballyclare, Kilashee, Co Longford; O’Loughlin; folio: 10161F; lands: folio: DN16234L; lands: property sit- 29895; lands: townland of Rinmore folio: 995; lands: Ballyclare; area: townland of Dough and barony of uate in the townland of Robinhood and barony of Galway; area: 0.0080 5.6934; Co Longford Ibrickan; area: 0.405 hectares; Co and barony of Uppercross; Co hectares; Co Galway Regd owner: Charles Curtis, Clare Dublin Regd owner: Farnes Construction Ltd; Lurgankeel, Kilcurry, Dundalk, Co Regd owner: Patrick O’Rourke; folio: Regd owner: Patrick McDonnell, folio: 42878F; lands: townland of Louth; folio: 1389F; lands: 6192F; lands: townland of Patricia McDonnell, Denise Ballynabooly and barony of Lurgankeel, Dundalk Upper; area: Mountshannon and barony of McDonnell; folio: DN2526F; lands: Corkaguiny; Co Kerry 0.2428; Co Louth Leitrim; area: 0.436 acres; Co Clare property situate in the townland of Regd owner: Michael Kane; folio: 2182; Regd owner: Frances Griffin, Balrath Regd owner: James Cregan; folio: Corduff and barony of Castleknock; lands: townland of Timolin and Road, Kells, Co Meath and Ann 31556F; lands: plots of ground Co Dublin barony of Naragh and Reban East; Co Crilly, Drumgooter, Grangebellew, known as 11 Birch Place in the parish Regd owner: Mercury Engineering Kildare Drogheda, Co Louth; folio: 3730, of St Finbar’s and in the county bor- Company Limited (limited liability Regd owner: Michael Mahon and Ella 3342; lands: Kilcroney; area: 7.6233 ough of Cork; Co Cork company); folio: DN73046L; lands: Mahon; folio: 22027F; lands: town- hectares, 5.1269 hectares; Co Regd owner: John-Francis Crowley; (1) the leasehold interest in the prop- land of Naas West and barony of Naas Louth folio: 10489F; lands: plots of ground erty being part of the townland of North; Co Kildare Regd owner: Eugene Larkin, being part of the townland of Blackthorn and barony of Rathdown, Regd owner: Sheila Broadmoor and Donaghmore, Kilkerley, Co Louth; Greenfield in the barony of (2) the leasehold interest in the prop- Graham Hughes; folio: 31726F; lands: folio: 5364; lands: Donaghmore; Muskerry East and county of Cork; erty being part of the townland of townland of Oakleypark and barony of area: 5.245, 1.459 hectares; Co Co Cork Carmanhall and barony of Rathdown; North Salt; Co Kildare Louth Regd owner: Thomas Mulcahy; folio: Co Dublin Regd owner: Delia Reddy; folio: 22015F; Regd owner: James McDermott, 14053; lands: plots of ground being Regd owner: Margaret Moloney; folio: lands: townland of Glebe North and Ballymakellett, Ravensdale, part of the townland of Lyrenamom DN61682F; lands: property known as barony of Kilcullen; Co Kildare Dundalk, Co Louth; folio: 3973; in the barony of Barrymore and 19 Griffith Avenue, situate in the Regd owner: Anastasia Doyle (deceased); lands: Ballymakellett; area: 3.6725 county of Cork; Co Cork parish of Clontarf and district of folio: 1449; lands: Earlsquarter and hectares; Co Louth Regd owner: Cornelius Healy and Clontarf; Co Dublin barony of Gowran; Co Kilkenny Regd owner: Marion McRory, 237 Margaret Riordan; folio: 9118; lands: Regd owner: Mark Feldman and Gail Regd owner: Robert Norwood and Greenacres, Dundalk, County plots of ground being part of the Feldman; folio: 96314F; lands: town- Bridget Norwood; folio: 16982; lands: Louth; folio: 1572L; lands: Marshes townland of Ballyrichard More in the land of Murphystown and barony of Purcellsinch and barony of Gowran; Lower; area: 0.0253 hectares; Co barony of Barrymore and county of Rathdown; Co Dublin Co Kilkenny Louth Cork; Co Cork Regd owner: Noelle Ryan and Paul Regd owner: Vincent McMorrow, Regd owner: Joseph Woods Limited, Regd owner: Richard McAuliffe; folio: Blanker; folio: DN97966F; lands: Carrowcrin, Dromahaire, Co Leitrim; Irish Street, Ardee, Co Louth; folio: 127L; lands: plots of ground situate property situate in the townland of folio: 13918; lands: Carrowcrin; area: 18650F; lands: Townparks; area: in Sidney Park in the parish of St Murphystown and barony of 2.7134 hectares and 0.2023 hectares; 0.121 hectares and 0.461 hectares; Anne’s Shandon and county borough Rathdown; Co Dublin Co Leitrim Co Louth

49 Law Society Gazette July 2005 Professional information

Regd owner: John Fitzgerald and Dublin 9; folio: 6027F; lands: Roche; folio: 339L; lands: Townparks Graham, Mark (deceased), late of Kathleen Fitzgerald; folio: 17359; Ballintlieve; area: 1.1736 hectares; and barony of Forth; Co Wexford Ballycoogue, Arklow in the county of lands: townland of (1) Co Meath Regd owner: Beton Limited; folio: Wicklow. Would any person having Ballymacgibbon North and (2) Regd owner: Margaret McDermott, 7 4269F; lands: townland of Tinode knowledge of the whereabouts of the will Knock South and barony of (1) and Athlumney, Navan, Co Meath; folio: and baronies of Talbotstown Lower; of the above named deceased, who died (2) Kilmaine; area: (1) 21 acres, 2 1241L; lands: Athlumney; Co Meath Co Wicklow on 4 April 1996, contact Richard Cooke roods, 22 perches; (2) 7 acres, 3 Regd owner: Joseph Brennan, Regd owner: John F O’Sullivan and & Co, Solicitors, Wexford Road, Arklow, perches; Co Mayo Drumnanaliv, Inniskeen, Co Margaret O’Sullivan; folio: 12192; Co Wicklow. The said will was stolen Regd owner: Eamon Flynn; folio: Monaghan; folio: 1311; lands: lands: townland of Humphrystown from the safe of Richard Cooke & Co, 19261; lands: townland of Lanmore Shancoduff; area: 9.5657 hectares; and barony of Talbotstown Lower; Solicitors, on or about 5 December 1997 and barony of Murrisk; area: 16.8197 Co Monaghan Co Wicklow hectares; Co Mayo Regd owner: John Patrick Brennan, Regd owner: Carolyn Wilson; folio: Holland, Patrick (deceased), late of Regd owner: Michael Geraghty; folio: Kilnamaddy, Braddox, Co 9321; lands: townland of Slievemweel Drumgur, Louth, PO Dundalk, Co 8996F; lands: townland of Monaghan; folio: 3723; lands: and barony of Ballinacor South; Co Louth, who died at Dundalk Hospital on Newantrim and barony of Carra; Kilnamaddy; area: 6.6191 hectares; Wicklow 1 June 2005. Would any person having area: 4.8710 hectares; Co Mayo Co Monaghan Regd owner: William and Doreen knowledge of the whereabouts of a will Regd owner: Seamus O’Hagan and Regd owner: John Finnerty and Mary Cobbe; folio: 5308; lands: townland by the above named deceased please con- Deborah O’Hagan; folio: 22353; Finnerty; folio: 23885; lands: town- of Tober Upper and barony of tact Pierce O’Sullivan & Associates, lands: townland of Swineford and land of Mount Talbot and barony of Talbotstown Lower; Co Wicklow Solicitors, 20 O’Neill Street, barony of Gallen; area: 1 rood, 2 Athlone North; area: 1 rood, 32 Regd owner: Garrett King; folio: 932F; Carrickmacross, Co Monaghan; tel: 042 perches; Co Mayo perches; Co Roscommon lands: townland of Carrigoona and 969 0850, fax: 042 969 0862 Regd owner: Padraic Ruttledge; folio: Regd owner: Maurice Buckley and barony of Rathdown; Co Wicklow 23977; lands: townland of (1) and (2) Mary Buckley; folio: 15650F; lands: Regd owner: John J Byrne; folio: 181 Joyce, Michael John (deceased), late of Cloonacauna and barony of (1) and townland of Carrowmore and barony and 12560F; lands: townlands of Maghermore, Oughterard, Co Galway. (2) Tirawley; area: (1) 5 acres, 1 rood, of Ballintober; area: 1.482 hectares; Killeagh and Crone Beg and baronies Would any person having knowledge of 29 perches; (2) 4 acres, 3 roods, 13 Co Roscommon of Ballinacor South; Co Wicklow a will made by the above named perches; Co Mayo Regd owner: Thomas Gilgan; folio: deceased, who died on 22 May 2005, Regd owner: Maria Tuohy; folio: 6013; lands: townland of Masreagh please contact L O’Connor & Co, 14213F; lands: townland of and barony of Tireragh; area: 7.2843 WILLS Solicitors, 196 Upper Salthill, Galway; Drumminroe East and barony of hectares; Co Sligo tel: 091 525 346 Carra; area: 0.3590 hectares; Co Regd owner: Mary Sheerin (deceased); Beattie, Charlotte Louise (deceased), Mayo folio: 11867; lands: townland of late of Covert Cottage, Loughtown, McAuley, Richard (deceased), late of Regd owner: Declan Dufficy and Anne Ballymote and barony of Corran; Brownstown, Newcastle, Co Dublin. 37 Ardilea Downs, Clonshaugh/ Dufficy; folio: 30184F; lands: town- area: 0.0050 hectares; Co Sligo Would any person with any knowledge Goatstown, Dublin 14, otherwise 41 land of Kilkelly and barony of Regd owner: Vincent Woods; folio: of a will executed by the above named Fosters Avenue, Donnybrook, Dublin 4 Costello; area: 0.04 hectares; Co 19682; lands: townland of deceased, who died on 5 May 2005, and 27 Church Road, East Wall, Dublin Mayo Tawnymucklagh and barony of please contact Wilkinson & Price, 3. Would any person having knowledge Regd owner: Nicholas Dolan, 102 Coolavin; area: 2 acres, 8 perches; Co Solicitors, Main Street, Naas, Co of a will made by the above named Elmmount Avenue, Beaumount, Sligo Kildare deceased, who died on or about 25 Regd owner: Kevin Dwan; folio: February 2005, please contact Early 15911F; lands; Graiguenoe and Blood, David (deceased), late of 25 & Baldwin, Solicitors, 27/28 Marino Galbertstown and barony of Shanglass Road, Santry, Dublin 9 and Mart, Fairview, Dublin 3; tel: 01 PRIVATE Middlethird and Eliogarty; Co formerly of 221 Stanhope Green, 833 3097, fax: 01 833 2515; ref: Tipperary Stanhope Street, Dublin 7. Died 16 MOD/5102 COMPUTER Regd owner: Trevor Melbourne and February 2005. Would any person hav- Sarah Melbourne; folio: 13725F; ing knowledge of a will of the deceased O’Connor, Kathleen (deceased), late TUITION lands: townland of Giantsgrave and please contact Maguire McErlean, of Ballypreacus, Bunclody, Co Wexford. barony of Iffa and Offa East; Co Solicitors, 78-80 Upper Drumcondra Would any person with any knowledge WOULD YOU LIKE TO BE Tipperary Road, Dublin 9; tel: 01 836 0621; (ref of a will executed by the above named E-MAIL AND INTERNET Regd owner: Denis Reid and Bridget CB) deceased, dated 15 May 1979, who died CONFIDENT?? Kennedy; folio: 25728F; lands: town- on 15 June 1979, please contact Peter G land of Clonismullen and barony of Early, James (deceased), late of Crean & Co, Solicitors, Estate House, Eliogarty; Co Tipperary Osberstown, Sallins, Naas, Co Kildare, Castle Hill, Enniscorthy, Co Wexford; LEARN HOW: Regd owner: Patrick Murray; folio: who died on 3 July 2004. Would any tel: 054 34500, fax: 054 34257 •From "Switching it on" to 2830L; lands: plots of ground being person having knowledge of a will of the ”Internet & Email" part of the townland of Mweelahorna above named deceased, who died on 3 O’Donnell, John (deceased), late of • In the comfort of your own in the barony of Decies within Drum; July 2004, please contact Sarah De MacBride Nursing Home, Westport, Co home or office Co Waterford Groot, Cashelnagor, Gortahork, Co Mayo (formerly of Barley Hill Nursing • At your own pace Regd owner: Hugh Milling and Frances Donegal; tel: 074 916 5474, e-mail: Home), Westport, Co Mayo, formerly of •All ages catered for Rebecca Wilson Milling, 12 • Detailed notes given [email protected] 23 Lower Charles Street, Castlebar, Co • Personal and Confidential - Whitebeam Avenue, Athlone, Co Mayo and formerly of The Quay Village, from one Professional to Westmeath; folio: 3036F; lands: Glynn, William (deceased), late of Westport, Co Mayo. Would any person another Clonbrusk; Co Westmeath Glynn’s Bar, Dublin Road, Oranmore, having knowledge of an original will • Quality Service assured Regd owner: Thomas Cowman Co Galway. Would any person with any made by the above named deceased, who (deceased); folio: 9485; lands: knowledge of a will executed by the died on 7 February 2005, please contact Contact Una at the Institute Yoletown, Ballycullane and barony of above named deceased, who died on 4 Patrick J Durcan & Co, Solicitors, James of Private Computer Tuition Shelburne; Co Wexford April 2005, please contact William F Street, Westport, Co Mayo in writing or at (01) 8471625 or Regd owner: Patrick Dempsey; folio: Semple & Company, Solicitors, Lough telephone 098 25100 9564F; lands: Oulart and barony of Corrib House, Waterside, Galway; tel: E-Mail: [email protected] Ballaghkeen North; Co Wexford 091 567371/2/3, fax: 091 567374, e- O’Sullivan, Mary (deceased), retired Regd owner: John Roche and Brendan mail: [email protected] bank official, late of 55 Rothe Abbey,

50 Law Society Gazette July 2005 Professional information

Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland. UNITED STATES LAWYERS Kleeman, Abloeser & DiGiovanni, P.C. is a prominent U.S. law firm that specializes in providing the following legal services in the United States: 1 Travel law: Representing foreign visitors seriously injured in the United States SPANISH LAWYERS 2 Personal injury litigation in the United States RAFAEL BERDAGUER Contact Michael Kleeman, Esq., at ABOGADOS (toll free) 00-800-221-56970 or by e-mail at [email protected] TWENTY YEARS ADVISING CLIENTS For more information about our law firm visit IN REAL ESTATE TRANSACTIONS IN SPAIN our website at www.kleemanlawfirm.com PROFILE: FIELD OF PRACTICES: panish Lawyers Firm focused eneral Practice, Administra- Son serving the need of the for- Gtive Law, Civil and Commercial Kilmainham, Dublin 8 and 28 Church eign investors, whether in compa- Law, Company Law, Banking and Street, Listowel, Co Kerry. Would any NORTHERN ny or property transactions and all Foreign Investments in Spain, person having knowledge of a will made attendant legalities such as ques- Arbitration, Taxation, Family Law, by the above named deceased, who died IRELAND tions of inheritance, taxation, International Law, Litigation in all on 10 June 2005, please contact SOLICITORS accounting and bookkeeping, Courts. Maurice O’Sullivan & Co, Solicitors, 3 planning, land use and litigation in We will engage in, Church Street, Listowel, Co Kerry; tel: all Courts. and advise on, 068 21760, fax: 068 21960, e-mail: ker- Avda. Ricardo Soriano, 29, all Northern Ireland- Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain [email protected]; DX 85 002 Listowel related matters, particularly personal injury Phelan, Mary (deceased), late of 48 Tel: 00-34-952823085 Fax: 00-34-952824246 litigation. e-mail: [email protected] Ard na Greine, Waterford. Would any Web site: www.berdaguerabogados.com person having knowledge of the where- Consultations where abouts of a will dated 15 March 1993, convenient. executed by the above named deceased who died on 11 August 1995, please contact T Kiersey & Company, OLIVER M Solicitors, 17 Catherine Street, Waterford; tel: 051 874 366, fax: 051 LOUGHRAN 870 390 & COMPANY Sheedy, Joan (otherwise Hannah) 9 HOLMVIEW TERRACE, (otherwise Siobhan) (deceased), late OMAGH, of 12 Dargle View, Churchtown, CO TYRONE Dublin 16. Would any person with any knowledge of a will executed by the Phone (004428) 8224 1530 above named deceased on 26 July 1983, Fax: (004428) 8225 7897 please contact Messrs Arthur P McLean e-mail: [email protected] & Company, Solicitors, 31 Parliament Street, Dublin 2; tel: 01 677 2519, fax: at the South Infirmary/Victoria 01 677 2325 Hospital, Cork, please contact Guilfoyles, Solicitors, Tuckey House, 8 Smith, Kieran (deceased), late of 4 Tuckey Street, Cork; tel: 021 427 2229 Jubilee Terrace, Cavan, Co Cavan and or fax: 021 427 5823 Coragh Glebe, Kinawley, Co Fermanagh. Would any person having Toibin, Niall (deceased), late of 4 St knowledge of a will made by the above Kevin’s Parade, South Circular Road, named deceased, who died on 10 July Dublin 8. Would any person having 2004, please contact Messrs Garrett J knowledge of a will executed by the Fortune & Co, Solicitors, Connolly above named deceased, who died on 9 Street, Cavan, Co Cavan; tel: 049 436 May 2004, please contact Ferry, 1233, fax: 049 436 1154, e-mail: Solicitors, Inn Chambers, 15 Upper [email protected] Ormond Quay, Dublin 7; tel: 01 677 9408, fax: 01 873 2976, e-mail: Tierney, Ann, (deceased), late of 29 [email protected] Clarks Road, Ballyphehane, Cork. Would any person having knowledge of Walsh, Marie Teresa (deceased) a will made by the above named (nurse), late of ‘Cascia’, San Antonia deceased, who died on 18 October 2003 Park, Salthill, Galway. Would any per-

51 Law Society Gazette July 2005 Professional information son having knowledge of a will made by Seven-day ordinary licence for sale – dwellinghouse and premises known as the city of Dublin for the acquisition of the above named deceased, who died on price region: €180,000. Any details, 42 Mountjoy Square South in the parish the freehold interest and all intermedi- 13 January 1999, please contact L please contact Declan Duggan, Denis of St George and in the city of Dublin’ ate interest in the property described in O’Connor & Co, Solicitors, 196 Upper Linehan & Co, Solicitors, Charleville, and known as 42 Gardiner Lane, the schedule hereto, and any party Salthill, Galway; tel: 091 525 346 Co Cork; tel: 063 89667 Dublin 1, held under indenture of lease asserting that they hold a superior inter- dated 16 December 1912 made between est in the said premises is called upon to Seven-day publican’s on-licence for Mary Margaret Gilsenan of the one part furnish evidence of title to the said MISCELLANEOUS sale. Contact: Neil M Blaney & Co; and Benjamin William White of the premises to the undersigned within 21 Solicitors, Unit 3, Strand Road other part for a term of 100 years from days of the date of publication of this Northern Ireland agents for all con- Shopping Centre, Portmarnock, Co 1 December 1912, subject to a yearly notice. tentious and non-contentious matters. Dublin; tel: 01 846 4188, e-mail: rent of £2.75 (old currency) and the In default of any such notice being Consultation in Dublin if required. Fee [email protected] covenants on the part of the lessee and received, the said Denis Shannon and sharing envisaged. Contact Norville conditions therein contained. the said Helen Shannon intend to pro- Connolly, D&E Fisher, Solicitors, Take notice that the applicant, ceed with the application before the 8 Trevor Hill, Newry; tel: 048 3026 Ordinary seven-day publican’s Rosskerrig Ltd, being the person enti- county registrar at the earliest opportu- 1616, fax: 048 3026 7712, e-mail: licence for sale in Co Cork. tled under sections 9 and 10 of the nity and will apply to the county regis- [email protected] Contact: Gerard Corcoran, JH Landlord and Tenant (Ground Rents) (No trar for the city of Dublin for directions Powell & Son, Solicitors, East 2) Act, 1978, intends to submit an appli- as may be appropriate on the basis that London solicitors will be pleased to Green, Dunmanway, Co Cork; tel: cation to the county registrar for the the person or persons beneficially enti- advise on UK matters and undertake 023 45117, fax: 023 45932 county/city of Dublin for the acquisi- tled to the superior interest including agency work. We handle probate, litiga- tion of the freehold interest and any the freehold reversion to the said prop- tion, property and company/commer- intermediate interest in the aforesaid erty are unknown and or unascertained. cial. Parfitt Cresswell, 567/569 Fulham property, and any party asserting that Schedule: 24 and 24A Conquer Hill Road, London SW6 1EU; DX 83800 Solicitor’s practice for sale. they hold a superior interest in the Road in the parish of Clontarf and the Fulham Broadway; tel: 0044 2073 818 Dublin south. Successful small prin- aforesaid premises or any of it is called county of the city of Dublin (previously 311, fax: 0044 2073 816 723, e-mail: cipal-run practice. Vendor may upon to furnish evidence of title to the known as number 1 St Michael’s Terrace [email protected] agree to remain as consultant. All aforementioned premises to the below on the east side of Conquer Hill in the replies confidential, box 65/05 named with 21 days from the date of parish of Clontarf in the county of the this notice. city of Dublin). Offices to let (27 Bridge Street In default of such notice being Date: 8 July 2005 Lower, City Gate, Dublin 8); received, Rosskerrig intends to proceed Signed: Lockhart & Company (solicitors for 1,200 sq ft net. Own door, mid- with the application before the county the applicants), 7 Annesley Bridge Road, Courtney, Spring & Co is terrace office property arranged registrar at the end of 21 days from the Fairview, Dublin 3 pleased to announce that new over ground first and second floor date of this notice and will apply to the associate Ms Réiltín Courtney, with two car parking spaces to the county registrar for the county/city of In the matter of the Landlord and rear, available for immediate let- who arrived on 6 May, is expected Dublin for directions as may be appro- Te nant Acts, 1967-1987 and in the ting. Enquiries to F Doyle, 086 to enliven the firm considerably. priate on the basis that the person or matter of the Landlord and Tenant 257 9628 Her primary areas of practice persons beneficially entitled to the (Ground Rents) Act, 1978: an applica- include sleeping, feeding and superior interest including the freehold tion by Peter Mulligan being utterly adorable. reversion in the aforesaid premises are Take notice that any person having unknown or unascertained. interest in the freehold estate of the fol- SOLICITORS Date: 8 July 2005 lowing property: all that and those the PRACTICE FOR Signed: Paul W Tracey (solicitors for the property formerly known as Savana and applicant), 24 Marlborough Street, Christina’s Fashion, now trading as SALE IN THE TITLE DEEDS Dublin 1 Bookmakers at Main Street, Bundoran MIDLANDS in the county of Donegal, otherwise the Would any person having knowledge of In the matter of the Landlord and plot of ground with buildings situate at Large commercial and the whereabouts of the title documents Tenant (Ground Rents) Acts, 1967 and Main Street, Bundoran in the parish of private client fee base to the premises at 83 Botanic Road (for- 1994 and in the matter of an applica- Innismacsaint, barony of Tirhugh and merly 15 Nora Terrace, Botanic Road), tion by Denis Shannon and Helen county of Donegal, originally held by Please respond to Glasnevin, Dublin 11, being the proper- Shannon lease dated 21 February 1871, Hamilton David Rowe at Outsource. ty comprised in an indenture of lease Take notice that any person having an Scott to Robert Moffitt and thereafter Tel: 01-6788490. Email: dated 30 September 1901 between interest in the freehold estate of the by Caroline Moffitt and Gerard Feely. [email protected] Henry Gore Lindsay of the one part and premises described in the schedule here- Take notice that Peter Mulligan intends George Clifton of the other part, please to and which are held under indenture to apply to the county registrar for the contact A Keegan & Co, Solicitors, 42 of sub-lease dated 13 February 1939, county of Donegal for the acquisition of DUBLIN FIRM Brookwood Park, Killester, Dublin, 5 made between James Joseph Dillon of freehold interest in the aforesaid prop- the one part and Robert J Crawford of erty, and any party asserting that they SEEKS MERGER In the matter of the Landlord and the other part for a term of 140 years hold superior interest in the aforesaid Small firm (2-3 solicitors) in Tenant Acts, 1967-1994 and in the (except the last three days thereof) from premises are called upon to furnish evi- Dublin City is seeking merger matter of the Landlord and Tenant 25 March 1937 and head lease dated 21 dence of title to the aforesaid premises (Ground Rents) (No 2) Act, 1978 and with similar size firm. Main June 1927, made between Edward to the below named within 21 days from in the matter of the premises situate Kingston Vernon of the one part and the date hereof. areas are Plaintiff and at 42 Gardiner Lane, Dublin 1: an James Joseph Dillon of the other part In default of such notice being Defendant litigation, application by Rosskerrig Ltd for a term of 150 years from 25 March received, Peter Mulligan intends to pro- Commercial and General Take notice any person having any 1927, should give notice of their interest ceed with the application before the Conveyancing. Please respond interest in the freehold estate or of any to the undersigned solicitors. county registrar at the end of 21 days to CCMG accountants (ref GM) superior interest in the following: all And take notice that Denis Shannon from the date of this notice and will 7, Fairview Strand, Dublin 3) that and those ‘that piece or plot of and Helen Shannon intend to submit an apply to the county registrar for the ground situate at the rear of the application to the county registrar for county of Donegal for directions as may

52 Law Society Gazette July 2005 Professional information be appropriate on that basis that the held under an indenture of lease dated 2 the person or persons beneficially enti- Locum solicitor required, Co Cavan; person/persons beneficially entitled to October 1848 and made between tled to the superior interest including part-time from September 2005 for six the superior interest including the free- George Baker of the one part and John the freehold reversion in the aforesaid months; accommodation available; con- hold reversion in the premises are Connell of the other part for the term of premises are unknown or unascertained. veyancing and litigation experience unknown or unascertained. 500 years from 2 October 1848, subject Date: 8 July 2005 essential. Rely to box no 62/05 Date: 8 July 2005 to the payment of a yearly rent of IR£10 Signed: Michael Sheil & Partners (solicitors Signed: VP Mullin (solicitors for the appli- (since adjusted to IR£9.45) (€12.00). for the applicant), Temple Court, Temple cant), Tirconnail Street, Ballyshannon, Co Take notice that Premia Road, Blackrock, Co Dublin Commercial property solicitor Donegal Developments Limited intends to sub- with minimum two years’ PQE. mit an application to the county regis- Apply to: JW O’Donovan, In the matter of the Landlord and trar for the city of Dublin for the acqui- RECRUITMENT Solicitors, 53 South Mall, Cork; Tenant (Ground Rents) Acts, 1967- sition of the freehold interest in the e-mail: [email protected]. Ref: 1994; premises: Cahir Post Office, aforesaid property, and any party or par- Apprenticeship required: MA, M Lib, GK/10/3 Cahir, Co Tipperary: an application ties asserting that they hold a superior information professional seeks legal by An Post interest in the aforesaid premises are apprenticeship. Superb interpersonal, Notice to any person having any interest called upon to furnish evidence of title IT and project-management skills. All Solicitor – part-time/full time (per- in the freehold interest and all interme- to the aforementioned property to the FE1s and first Irish exam passed. I am manent) required for Mullingar prac- diate interests of the following property: below named within 21 days from the someone who is highly motivated, tice. Experience in conveyancing and all that parcel of ground on the west side date of this notice. organised and able to work on own ini- litigation desirable. Please reply to box of Cashel Road and extending back to In default of any such notice being tiative. All locations considered. no 63/05 the mall in the town of Cahir and con- received, Premia Developments Available immediately. Contact taining in front of Cashel Road afore- Limited intends to proceed with the Margaret at 085 713 1897 or e-mail: Apprenticeship required: experienced said 36 feet or thereabouts, situate in the application before the county registrar [email protected] person in both large and small firms town of Cahir, barony of Iffa and Offa at the end of 21 days from the date of seeks to commence work experience as West and county of Tipperary, being the this notice and will apply to the county Apprenticeship required: hard-work- an apprentice upon completion of property more particularly described in registrar for the city of Dublin for direc- ing and enthusiastic 24-year-old law PPC1 course in April/May 2006. Own a lease dated 1901 and made between tions as may be appropriate on the basis graduate with 2.1 degree, passed all car and full driver’s licence. Preferred the Right Honourable Margaret that the person or persons beneficially FE1s on first attempt, also Irish exam, location in Limerick or Munster area. Charteris, commonly called the Lady entitled to the superior interest includ- currently working with legal clinic for Please contact me at box no 64/05 or Margaret Charteris, of the one part and ing the leasehold reversion in the afore- immigrants, very eager to commence alternatively e-mail: [email protected] His Majesty’s Postmaster General of the said premises are unknown or unascer- legal training, willing to pay own fees, other part for the term of 99 years. tained. all areas considered. Contact 087 683 Law graduate seeks apprenticeship Take notice that the applicant, An Date: 8 July 2005 9658 or e-mail: karenberkeley@eir- –extensive in-office experience of litiga- Post, intends to submit an application to Signed: McCann FitzGerald (solicitors for com.net tion, conveyancing and probate and the county registrar for the county of the applicant), 2 Harbourmaster Place, with PPC1 course completed. Tipperary for the acquisition of the IFSC, Dublin 1; ref: CEK Apprenticeship required: law graduate Dynamic, hardworking, conscientious freehold interest in the aforesaid prop- with extensive in-office experience of and highly motivated with excellent erty, and any party asserting that they In the matter of the Landlord and litigation, conveyancing and probate communication and computer skills. hold a superior interest in the aforesaid Tenant Acts, 1967-1984 and in the and with PPC1 course completed seeks Any area considered; tel: 086 892 0228 property are called upon to furnish evi- matter of the Landlord and Tenant apprenticeship. Dynamic, hardworking, or e-mail: [email protected] dence of title to the aforementioned (Ground Rents) (No 2) Act, 1978 and conscientious and highly motivated with premises to the below named within 21 the Landlord and Tenant (Ground excellent communication and computer Traineeship transfer required – no days from the date of this notice. Rents) Act, 1967 and in the matter of skills. Any area considered; tel: 086 892 fees payable, as PPC1 completed and In default of any such notice being an application by Alizima Properties 0228 or e-mail: [email protected] Law Society allows firms to have two received, the applicant intends to pro- Limited of 1st floor, Fitzwilton trainees. Motivated, enthusiastic, hard- ceed with the application before the House, Wilton Place, Dublin 2 Carrick-on-Suir, Co Tipperary: working, business graduate (2.1) with county registrar for the county of Take notice any person having any solicitor required for general practice. employment experience and excellent Tipperary for directions as may be interest in the freehold estate of the fol- The successful candidate will have at references seeks transfer of traineeship appropriate on the basis that the person lowing property, namely: no 59 Moore least one year’s PQE with experience in in Dublin area. Ability to work on own or persons beneficially entitled to the Street, Dublin 1. conveyancing, probate and litigation. initiative and as part of a team. Ready to superior interest including the freehold Take notice that the applicant, Good conditions and salary. transfer immediately. Please tel: 087 reversion in the above premises are Alizima Properties Limited, intends to Applications will be treated in the 685 0534 or e-mail: blackhalltrainee@ unknown or unascertained. submit an application to the county reg- strictest confidence – apply with CV to yahoo.ie Date: 8 July 2005 istrar for the county/city of Dublin for box no 60/05 Signed: Hugh O’Reilly (solicitor for the the acquisition of the freehold interest Conveyancing locum solicitor applicant), GPO, O’Connell Street, in the aforesaid properties, and any Experienced solicitor, relocating to required, Bray, beside Dart, call Dublin 1 party asserting that they hold a superior the east, with extensive experience in Clifford Sullivan & Co, 01 276 5226 interest in the aforesaid premises are general practice and, in particular, con- In the matter of the Landlord and called upon to furnish evidence of title veyancing, family law, probate and court Tenant Acts, 1967-1994 and in the to the aforementioned premises to the work, seeks position in the matter of the Landlord and Tenant below named within 21 days from the Carlow/Kildare area, full time, or part- (Ground Rents) (No 2) Act, 1978: an date of this notice. time initially, may suit. Contact: 087 969 application by Premia Developments In default of any such notice being 3958 Limited received, the applicant intends to pro- Take notice that any person having a ceed with the application before the Locum solicitor available, with exten- superior interest in the land and premis- county registrar at the end of 21 days sive experience in areas of conveyanc- es formerly known as 27 and 28 Lower from the date of this notice and will ing, probate, litigation and family law. Buckingham Street in the parish of St apply to the county registrar for the Will become available from 1 Thomas and the city of Dublin, being county and city of Dublin for directions September 2005. All areas considered. part of the property comprised in and as may be appropriate on the basis that Please reply to box no 61/05

53 Law Society Gazette July 2005 DIPLOMA PROGRAMME

Applications are now being accepted for the following courses:

NEW Diploma in Commercial ipants with up-to-date knowledge of the In addition to the substantive law cours- Conveyancing law and practice in the areas covered. It es listed above we will also be offering 5 November 2005 will provide participants with a high level a Certificate in Spanish Law, a Saturday mornings 11.00am - 3.00pm of expertise in the field of Commercial Certificate in Legal German (in associa- Education Centre - Blackhall Place Law and senior practitioners working in tion with the Goethe Institut) and a Fee: €1500 the field will deliver lectures. Diploma in Legal French (in association with the Alliance Francaise). This Diploma is opened to solicitors and Update in Commercial trainee solicitors who have completed Law Diploma in Legal PPC I only. A day long "update" in Commercial Law French will be held in the Law Society on 5 October 2005 The diploma is designed to expose par- Saturday 22 October 2005. Participants Fee: €1,000 ticipants to the practical issues arising can attend one module or the whole day This diploma is run in conjunction with in the area of Commercial Conveyancing as is appropriate. Day price 250 and the Alliance Française. It provides stu- It will benefit those working in this area price per module (€75). Further details dents with a thorough grounding in of law by providing a high level of expert- available from the Diploma team. French law and language and is open to ise and lectures will be delivered by sen- students who have a good standard of ior practitioners working in the field. The Diploma in Trust & French. course is aimed at practitioners with Estate Planning (in asso- experience in this area. It will also pro- ciation with STEP) Certificate in Legal vide a useful refresher course for those 17 September 2005 German who may have returned to conveyancing Saturday mornings 10.00am – 2.30pm 26 September 2005 practice. It will assume a level of pre- Education Centre, Blackhall Place Fee: €800 for two terms existing knowledge commensurate with Fee €1,700 (inclusive of STEP student This course offers a practical introduc- that taught on the PPC Courses. The membership fee) tion to legal German and the German overall emphasis will be on practicality. legal system. The course is divided into Principles of law will be analysed by ref- In its second year, this Diploma is offered a number of modules dealing with rele- erence to working examples and a range jointly by the Law Society of Ireland and vant subjects including the German of practice-based issues will be dealt the Society of Trust and Estate Practition- legal system, Courts and Court with which will be of direct relevance to ers. This diploma course is intended for Procedures, Company Law, Property conveyancing practitioners. persons who work, or aspire to work in Law and Contracts. This course is run the trust and estate planning area within in conjunction with the Goethe Institut Diploma in Commercial Ireland. Candidates who successfully Inter Nationes. Law complete the Diploma but have less than 20 September 2005 two years work experience in the areas of Certificate in Spanish Tuesday Nights 6.30pm – 9.30pm wills, trusts and estate planning are eligi- Law National College of Ireland, ble for Associate Membership of the 25 October 2005 Mayor Street, IFSC, Dublin 1 Society of Trust and Estate Practitioners Fee: €700 Fee: €1,600 Ireland. Successful diploma candidates This certificate course, run by the Law with two or more years work experience in Society, provides students with an The diploma is of interest to trainees, the areas of estate planning, trusts and overview on the Spanish political and solicitors, barristers, and people working administration of estates are eligible to legal systems. It is focused on Property in business who wish to expand their apply for full membership of the Society of law and Probate as main topics, but it knowledge and practical application of Trust and Estate Practitioners (STEP). Any also covers other areas of law, includ- commercial law. It is primarily designed full member is authorised to use the des- ing legal Spanish and the legal profes- to meet the needs of solicitors in private ignation TEP and be described as a sion in Spain. It is open to students practice. As the economy expands solici- Registered Trust and Estate Practitioner. with a good standard of Spanish. tors are finding that clients increasingly All course participants will automatically Those interested in attending must want legal advice on business matters. become student members of STEP, and complete a pre-course language This course is intended to provide partic- this included in your course fee. assessment.

For further information on any of the above courses please access our website www.lawsociety.ie click on Diploma Programme on the home page and simply follow the drop-down menus or e-mail the [email protected] / phone 01 672 4839. Recruitment

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55 Law Society Gazette July 2005 Recruitment

56 Law Society Gazette July 2005